The MetaBirkin creator argued that his project was protected under the first amendment as artistic expression; however, that defense ultimately fell short.
French luxury fashion house Hermès has notched another win in its infringement case against artist Mason Rothschild after a United States judge ordered a permanent injunction on all “MetaBirkin” nonfungible token (NFT) sales.
Hermès initially submitted the request to the U.S. District Court for the Southern District of New York in March to block all sales of the MetaBirkin NFTs.
On June 23, Manhattan-based U.S. Judge Jed Rakoff officially granted the request, and he offered a skeptical take on Rothschild’s defense against Hermès’ suit, questioning Rothchild’s continued marketing of the project.
“[The] defendant’s entire scheme here was to defraud consumers into believing, by his use of variations on Hermes’ trademarks, that Hermes was endorsing his lucrative MetaBirkins NFTs,“ Rakoff said, adding that:
“Nothing in the First Amendment insulates him from liability for such a scheme.“
The MetaBirkin collection consists of 100 NFT artworks depicting furry Birkin style handbags, with Rothschild reportedly generating more than $1 million worth of sales from the project.
MetaBirkins 78 just sold for 2.3 Ether (≈$4,000) to @wyaricky on @LooksRareNFT! pic.twitter.com/8RPLukg8WY
— MetaBirkins (@MetaBirkins) September 12, 2022
The legal dispute began in January after Hermès accused Rothschild’s NFT collection of improperly using its Birkin trademark, leading customers to believe the brand was supporting the project.
In February, the court ruled that Rothschild had violated Hermès trademark following a nine-member jury verdict, with the artist ordered to pay $133,000 in damages.
Rothschild had argued that his project was an artistic expression protected by the first amendment, in a similar vein that enabled Andy Warhol to legally make and sell art featuring Campbell’s soup cans.
Take nine people off the street right now and ask them to tell you what art is but the kicker is whatever they say will now become the undisputed truth. That’s what happened today.
— Mason Rothschild (@MasonRothschild) February 8, 2023
A multibillion dollar luxury fashion house who says they “care” about art and artists but..
Additionally, the artist asserted that he hadn’t explicitly misled consumers, as he had provided disclaimers explaining that Hermès had no affiliation.
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However, the judge and jury also refuted this, as the use of the word “Birkins” was brought into question.
“The jury found that his decision to use Hermès’ trademarks in the name and design of the MetaBirkins NFTs — not just his marketing and sales techniques — was explicitly misleading and rejected his disclaimer defense,” the court doc reads.
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