MESSAGE
| DATE | 2023-02-09 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [Hangout - NYLXS] Virtual IP battles
|
An NFT artist who sold virtual 'MetaBirkin' handbags for up to $45,100 a
piece violated Hermès trademark rights, New York jury rules
Matthew Loh
3–4 minutes
An Alligator birkin bag by Hermes in auction at the Christie's seasonal
Handbag and Accessories Auction at the Hong Kong Convention and
Exhibition Centre.
An Alligator birkin bag by Hermes in auction at the Christie's seasonal
Handbag and Accessories Auction at the Hong Kong Convention and
Exhibition Centre.Sam Tsang/South China Morning Post via Getty Images
An artist who sold virtual Birkins as NFTs was found to have
violated Hermès' trademark rights.
Mason Rothschild sold his "MetaBirkins" for up to $45,100 each,
Hermès said in its complaint.
A New York jury ruled that the MetaBirkin NFTs are not artworks
protected by the First Amendment.
A New York jury ruled on Wednesday that an NFT artist violated the
trademark rights of French luxury brand Hermès by selling virtual purses
styled after the iconic Birkin handbag.
The case is one of the first in the world to deliberate over whether
NFTs are considered art protected by the First Amendment, or just
commodities.
The nine-person jury in Manhattan found that virtual handbags were not
protected property, and ruled that the NFTs sold by Mason Rothschild
were likely to confuse customers into thinking the digital products are
affiliated with Hermès and real Birkins.
Rothschild, whose real name is Sonny Estival, calls his digital bags
"MetaBirkins." Eccentric designs in his collection include a bag with
tusks and one with a Santa hat resembling the Grinch.
One MetaBirkin created by Rothschild featured an animation of a fetus
growing in the bag, which was sold for around $23,500, Vogue Business
reported.
Rothschild has released 100 MetaBirkins, but said he had plans to make
1,000 total, according to court filings seen by Insider. Each was
typically sold for $450.
Hermès sued Rothschild on January 14, 2022, saying his creations had
diluted its Birkin trademark. It claimed in its complaint that the
artist had sold $1.1 million worth of MetaBirkins, and that one of the
NFTs was sold for as much as $45,100.
Meanwhile, Rothschild's lawyers said he made around $125,000 in total
from the sales of the digital goods, including royalties of 7.5% of
secondary sales.
The jury awarded $133,000 to Hermès for trademark infringement,
dilution, and cybersquatting — registering a trademark, usually of
well-known brands, to ransom it or profit from holding the trademark.
Hermès said in its complaint that MetaBirkin sales stemmed from
Rothschild using the name "Birkin," and that his brand "simply rips off"
the luxury firm's product.
Conversely, Rothschild's legal team compared the NFTs to Andy Warhol's
1962 paintings of Campbell's canned soup, saying they were protected as
free speech.
During opening arguments in court, Rothschild's lawyers challenged
whether people rich enough to buy Birkins, which can cost up to
$500,000, would really be fooled by the NFT project, The New York Times
reported.
"Art doesn't exist in a vacuum — it's often about context," said Rhett
Millsaps II, one of Rothschild's lawyers, per The Times.
In a statement emailed to Insider, Millsaps wrote: "Today was a great
day for big brands, and a terrible day for artists and the First
Amendment. We look forward to the appeal."
Representatives for Hermès did not immediately respond to Insider's
request for comment.
Read the original article on Insider
--
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