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Who hasn’t at some point wanted to own the coveted Hermès Birkin bag? We know we have. But the problem is its whopping price tag (can run up to tens or even hundreds of thousands of $$). Moreover, the luxury bags are also difficult to acquire in the first place as the waitlist for the item can often be years long.
The legal angle
Well, a little over a year ago, NFT designer Mason Rothschild devised a workaround by dropping NFTs resembling the Birkin bags. The digital furry renditions of the bags that he called “MetaBirkins” sold for ~$42,000 online. Except, this did not sit well with Hermès, which then slammed the creator with a lawsuit claiming the product “simply rips off Hermès’ famous Birkin trademark by adding the generic prefix ‘meta.’”
“I am not creating or selling fake Birkin bags. I’ve made artworks that depict imaginary, fur-covered Birkin bags,” Rothschild previously said in an online statement responding to the suit. “I won’t be intimidated.”
And he has stood by that, which led to a ruling on Dec. 30, wherein a US district judge declared a trial date for the end of this month.
But why should you care?
The high-profile case has raised eyebrows—not just because it’s Hermès, but also because the results of the case could help determine what counts as intellectual property as the world of Web3 and metaverse continues to expand.
Hermès alleges that Rothschild has simply created a kind of knockoff version of its bag. “Although a digital image connected to an NFT may reflect some artistic creativity, just as a T-shirt or a greeting card may reflect some artistic creativity, the title of ‘artist’ does not confer a license 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,” the company said in its complaint.
On the other hand, Rothschild and his legal team claim that the NFTs classify as “art” and hence should be protected under the First Amendment.
“MetaBirkins describes what the images [show] and also that there’s no claim ever made by Mason that Hermès was the author or the creator of MetaBirkins,” Rothschild’s attorney, Christopher J. Sprigman, told WWD. “So given what discovery shows, the First Amendment should protect Mason’s art, Mason’s artistic speech against Hermès’ trademark claims. You know, artists have a right under the First Amendment to describe, to comment on what’s around them.”
Which argument is the court most likely to buy? Well, we know we will be watching to find out.—JS