Hermès lawsuit over ‘MetaBirkins’ NFTs can go ahead, under judge’s rules

The logo of French luxury group Hermes is seen during the inauguration of the commercial area of ​​Terminal 1 at Nice International Airport in Nice, France, June 10, 2016. REUTERS/Eric Gaillard

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  • Hermès said artist depictions of luxury bags violate its trademark rights
  • Artist NFT Says Digital Works Are Protected by the First Amendment

(Reuters) – Hermes International SA persuaded a federal judge in Manhattan on Thursday not to dismiss its trademark lawsuit against an artist for selling non-fungible “MetaBirkins” tokens depicting the French fashion house’s Birkin bags.

U.S. District Judge Jed Rakoff denied Mason Rothschild’s motion to dismiss the case in a one page order after a hearing on Wednesday. He said he would set out his reasoning in a later notice.

The case is being watched for its potential to clarify how trademark law will apply to NFTs, newly popular digital assets that can be used to verify the authenticity of a work of art.

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A Rothschild attorney declined to comment. Hermès and its attorneys did not immediately respond to a request for comment.

Hermes for follow-up Rothschild in January about its MetaBirkins, which depict the company’s Birkin bags covered in colored fur. The Hermès lawsuit said Rothschild began offering the NFTs at the Art Basel art fair in Miami in December without his permission and sold more than $1 million in early January.

The company called Rothschild a “digital speculator” and MetaBirkins a “get-rich-quick” scheme and said “the ‘artist’ title” does not allow it to use the Birkin brand to mislead consumers.

Rothschild quarreled in March deposit that the works comment on the “inherent cruelty in Hermès’ manufacturing of its ultra-expensive leather handbags” and are protected by the First Amendment to the US Constitution.

The filing also states that his art “does not lose First Amendment protection simply because he sells it” or uses NFTs to authenticate it.

The case is Hermes International v. Rothschild, US District Court for the Southern District of New York, No. 1:22-cv-00384.

For Hermès: Gerald Ferguson, Deborah Wilcox and Oren Warshavsky of Baker & Hostetler

For Rothschild: Rebecca Tushnet, Mark McKenna, Rhett Millsaps and Christopher Sprigman of Lex Lumina

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