Hermès files trademark infringement, dilution lawsuit against MetaBirkins NFT creator
As reported by The Fashion Law, Hermès has filed a lawsuit against MetaBirkins NFT creator Mason Rothschild. MetaBirkins is a collection consisting of 100 virtual Birkin bag-inspired NFTs, each rendered in bright colours and faux fur and some with artworks like the Mona Lisa and Van Gogh's Starry Night.
Hermès claims that Rothschild’s “widespread use of the MetaBirkins mark constitutes trademark infringement and dilution,” as that “there can be no doubt” that the “success” of the MetaBirkins NFTs “arises from his confusing and dilutive use of Hermès’ famous trademarks.”
The brand also claims that Rothschild is “a digital speculator who is seeking to get rich quick by appropriating the brand MetaBirkins for use in creating, marketing, selling and facilitating the exchange of digital assets known as non-fungible tokens,” which simply “rip off Hermès’ famous BIRKIN trademark by adding the generic prefix “meta”.
MetaBirkin NFTs were initially sold on NFT marketplace platform OpenSea. The first MetaBirkin NFT was sold on 3 December 2021 for $42,000. Hermès notified both Rothschild and OpenSea on 16 December, saying that Rothschild blatantly violated its intellectual property. Hermès also said that MetaBirkin are an example of fake Hermès products in the metaverse.
OpenSea “agreed with Hermès” and removed the NFTs. However, Rothschild has “flatly refused to stop selling the MetaBirkins NFTs.” He is currently selling the Metabirkin NFTs on other NFT platforms, such as Rarible, Zora and LooksRare. The most expensive piece was priced at $45,100 on Rarible, while the cheapest piece is available for 5.0 ETH on LooksRare.
Rothschild shared his remarks to OpenSea about the unilateral removal of the MetaBrikins from the platform. “You were formed as an innovative hub for artists and collectors alike. The growth of your business relies on the support of the art community,” said Rothschild. “You should stand by the artists who support you.”
Hermès has sent a cease-and-desist letter to Rothschild, which he responded to through an Instagram post. In the open letter, Rothschild stated that his work is protected by the First Amendment. He also wrote that as a fashion powerhouse, Hermès is supposed to utilise its power to help young artists.
Hermès responded to this claim. In the lawsuit, the brand stated that “NFT may reflect some artistic creativity [...], however, the title of ‘artist’ does not confer a licence to use an equivalent to the famous BIRKIN trademark in a manner calculated to mislead consumers and undermine the ability of that mark to identify Hermès as the unique source of goods sold under the BIRKIN mark.”