Luxurious sparkly handbag

Hermès triumphs over artist in groundbreaking NFT trademark case

By James Wan

What you need to know (in a nutshell)

  1. A Manhattan jury found that the sale of “MetaBirkin” NFTs by Mason Rothschild violated Hermès International SA’s trademark rights and awarded the luxury brand $133,000 in damages.
  2. The sale and resale value of the NFTs ranged from $450 to tens of thousands of dollars, and Hermès argued that the NFTs harmed their plans to enter the NFT space.
  3. The loss may hurt NFT artists using trademarks in their work, although there is still room for artwork to be protected by the First Amendment.

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In a recent ruling by a Manhattan federal jury, it was determined that Mason Rothschild had infringed upon the trademarks of luxury brand Hermes International SA when he sold his “MetaBirkin” Non-Fungible Tokens (NFTs). The jury rejected Rothschild’s argument that these digital tokens were protected under First Amendment rights and awarded Hermes $133,000 in damages. While Hermes is known for its exorbitantly priced Birkin handbags ranging from approximately $12,000 to a staggering $200,000, Rothschild initially offered his digital tokens for a mere $450 each. Their resale value, however, soared into the tens of thousands of dollars, encroaching upon Hermes’ plans to enter the burgeoning NFT space.

This verdict has understandably sparked concern among aspiring artists who intend to incorporate trademark elements into future projects. Alfred Steiner, an intellectual property attorney who also considers himself an artist, remarked that the subtlety of the commentary in Mason’s work might have been difficult to discern, potentially causing it to be lost on jury members or the general public.

Nevertheless, Emily Poler, a lawyer specialising in technology and intellectual property law, believes there is still room for artworks to be protected by First Amendment rights under certain circumstances. She argues that such protections depend heavily on the specific facts of each case. Consequently, despite the ruling against Rothschild, the potential for future artistic endeavours to be shielded by First Amendment rights remains a possibility, albeit contingent upon the details of each case.