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Hermès is suing the NFT creator Mason Rothschild, who has seen viral success marketing a line of digital assets he calls “MetaBirkins.”
The French luxury house dropped its famously discreet posture in order to come out guns-blazing against Rothschild in a 47-page complaint submitted to New York’s Southern District Court Friday, calling the creator “a digital speculator who is seeking to get rich quick.”
The complaint, which was first reported on The Fashion Law, raises questions about how trademark protections for real-world items will be enforced in the digital realm as commercial activity heats up in the metaverse. Brands including Balenciaga and Nike are experimenting with virtual fashion. Non-fungible tokens, or NFTs (unique digital assets authenticated using blockchain technology), depicting fashion items have sold for millions in recent months.
Rothschild’s digital dupes of the Birkin, which depict fur-covered bags shaped like the iconic totes, first sold online in December for $42,000. The bags retail for over $10,000 in the physical world and are particularly coveted on the resale market due to their limited production.
A few weeks later, NFT exchange OpenSea removed the MetaBirkins from its online exchange in response to a cease-and-desist letter from Hermès, but Rothschild continued to market them on his website, linking visitors to other exchanges where they remain available to buy and sell.
Rothschild “simply rips off Hermès’ famous Birkin trademark by adding the generic prefix ‘meta’,” Hermès’ counsel alleged in the complaint. “There can be no doubt that this success arises from his confusing and dilutive use of Hermès’ famous trademarks,” the company added.
Rothschild has claimed that as an artist his activities are protected by the First Amendment guaranteeing freedom of speech, calling the MetaBirkins a “playful abstraction of an existing fashion-culture landmark.”
“I am not creating or selling fake Birkin bags. I’ve made artworks that depict imaginary, fur-covered Birkin bags,” Rothschild said in a statement online Monday responding to Hermès’ complaint. “I won’t be intimidated,” he added.
Hermès has pushed back against his interpretation. “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.
The company argues that without the court’s action, MetaBirkins could “ultimately preempt Hermès’ ability to offer products and services in virtual marketplaces that are uniquely associated with Hermès and meet Hermès’ quality standards.” Hermès wants the court to require Rothschild to cease his activities, surrender the MetaBirkins.com domain name to Hermès, and pay damages including his profits from selling the digital assets.
Editor’s Note: This article has been updated on Tuesday, 18th January 2022 at 9:40am BST. Adds comment by Mason Rothschild in response to Hermès’ legal complaint.
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