The legal battle between Hermès and Mason Rothschild over the “MetaBirkin” NFT project continues, with the case now being heard by the U.S. Court of Appeals for the Second Circuit.
This follows last year’s jury decision, which ruled in favor of Hermès, ordering Rothschild to pay $133,000 in damages. Rothschild is now appealing that decision.
At the heart of the appeal is Rothschild’s argument that the jury wrongly concluded his use of the Birkin name was misleading. He claims that his use was artistically relevant and did not confuse consumers into thinking Hermès was involved in the project.
Rothschild launched his “MetaBirkin” NFT collection in 2021, featuring 100 unique digital images of Birkin-shaped bags. The collection drew significant attention, generating over 250 ETH in trading volume, equivalent to more than $420,000 at the time. Each NFT had a starting price of around 3.8 ETH, or roughly $6,200.
The jury, however, found that these NFTs were likely to confuse consumers, believing they were affiliated with Hermès when no such relationship existed. Rothschild contends that the court misinterpreted his intentions, focusing too much on the idea that he aimed to profit from Hermès’ reputation rather than recognizing his project as a form of artistic expression.
In his appeal, Rothschild also raises a broader issue, arguing that trademark law should not apply to NFTs, which are digital assets. He claims that since NFTs exist in the digital realm, Hermès’ trademark infringement claims do not hold up legally.
Despite the 2023 verdict, a U.S. district judge in New York allowed the “MetaBirkin” NFTs to be exhibited at the Spritmuseum in Stockholm earlier this year, with the condition that the museum must inform visitors that a jury had determined Rothschild intended to mislead the public about Hermès’ involvement.
This case is not an isolated one in the NFT space. Other legal disputes involving digital assets and trademark violations have emerged. For example, Yuga Labs, the creator of the Bored Ape Yacht Club (BAYC) collection, faced a similar legal challenge when Ryder Ripps was accused of copying BAYC artworks. In October 2023, Yuga Labs won a copyright lawsuit against Ripps, with a federal judge in California awarding $1.6 million in damages and legal fees.
