A trademark infringement trial between Hermes and a non-fungible token (NFT) artist that began earlier this week is expected to have major implications on how trademark law is enforced within the realm of digital artwork.
Hermes, the French luxury brand behind the Birkin handbag, claims Mason Rothschild’s collection of 100 “MetaBirkin” NFTs “simply rips off Hermes’ famous Birkin trademark,” according to a complaint filed in New York federal court. Rothschild’s MetaBirkins, which debuted at Art Basel in 2021, consist of colorful digital images of Birkin bags covered in furry material.
After Rothschild began selling the NFTs through OpenSea, an NFT platform, they were eventually taken down when Hermes notified the platform of its trademark issues. However, Hermes alleges that Rothschild continues to sell his collection on other NFT platforms, according to the brand’s complaint.
Meanwhile, Rothschild claims his NFTs are similar to Andy Warhol’s prints of Campbell soup cans, arguing the MetaBirkins are artwork and therefore protected under the First Amendment.
On Jan. 30, the opening day of the trail, Judge Jed Rakoff ruled that Rothschild cannot provide testimony from Blake Gopnik, an Andy Warhol art expert, in order to support his artistic expression argument. Hermes previously claimed Gopnik’s testimony wasn’t based on a reliable methodology or sound data.
An attorney for Rothschild did not respond to requests for comment.