Yesterday February 8, 2023, the maison de lux française Hermès won the trademark lawsuit against MetaBirkins – NFT project by Mason Rothschild before the Federal Court. The verdict established a precedent of non-application of First Amendment protection to a digital project. The jurors did not consider the NFTs as the artworks.
Image from MetaBirkin Instagram
First, the beginning of the lawsuit in 2021
Back in May, 2021, the maison Hermès was furious with the artist’s “Baby Birkin” NFT, using its bag name “Birkin” and design, sold in a Basic.Space auction for $23,500 without any affiliation between them. Then, the artist continued to create the MetaBirkin project – the first of which was sold on December 3, 2021 for $42,000.
Baby Birkin: https://basic.space/auctions/baby-birkin
MetaBirkin project: https://www.instagram.com/metabirkins/?hl=en
Second, the Court’s opinion
On February 2, 2023, the District Court, S.D. New York denied the parties’ cross motions for summary judgement and let the jury determine whether the artist’s use of Hermès’ trademark is artistically relevant to his work. In this opinion, the Court underlined the nature of trademark law. “Unlike copyright law […], trademark law is (1) not intended to protect the owner’s right in a creative product simply to encourage creative output, i.e., where there is no consumer confusion […]; (2) not founded on a constitutional mandate, and therefore must be applied with caution where constitutionally protected speech is arguably involved.”
Finally, the verdict and its potential impacts
According to the New York Times, the federal jury found that Rothschild had infringed on the company’s trademark rights and the free speech rights do not protect the NFTs in question. They also awarded Hermès $133,000 for damages. Particularly, they determined his NFTs as commodities rather than artistic works. Yet, the Court has not released the full text of the decision. Upon its publish, it could be the guidance to define the boundary between artistic expression and commercial goods.
Source: https://www.nytimes.com/2023/02/08/arts/hermes-metabirkins-lawsuit-verdict.html
For more news about virtual world on AstraIA Gear: https://www.astraiagear.com/2023/02/04/update-about-the-metaverse/