By: Julianna Tramposch
The luxury goods company, Hermés, has recently won its lawsuit against Mason Rothschild. Rothschild is a Los Angeles-based interdisciplinary artist and designer, who produced a Non-Fungible Token (NFT) collection based on the iconic Hermés Birkin bag. He named this collection “MetaBirkins” and has been fighting Hermés' claim against trademark rights. Hermés believes his collection is not only a violation of trademark rights but an example of fake Hermés products apparent in the Metaverse.
Rothschild’s argument, which he publicly posted through the @MetaBirkins Instagram account, is that he is not creating nor selling fake Birkin bags. Instead, he is selling art, through NFT, that represents a furry and nonexistent Birkin bag. Art through NFT means there is no physical form of art, just a digital form. Buyers of his art pay through ETH, which is a cryptocurrency for the Ethereum blockchain. According to Business of Fashion, The MetaBirkins were being sold for 0.1 ETH, which can translate to $450 in real life.
Despite Rothschild’s argument, judges concluded this digital artwork does breach Hermés trademark and creates the potential to confuse customers of Hermés. The court is compensating Hermés financially on accounts like trademark infringement, brand dilution, and cybersquatting. Rothschild however, has announced his decision to appeal this turnout and has no intention to discontinue the art he is making.
After a failed to cease and desist letter, Hermés continued with a lawsuit because of two main reasons. First, they believed Rothschild's use of the trademarked word “Birkin” and the shape of the bag would ultimately damage their prestigious reputation. Second, the attention the “MetaBirkin” collection has accumulated can hinder Hermés from tapping into the Metaverse themselves. Many other competitive fashion houses, such as Dolce & Gabbana and Gucci, have released NFTs and are becoming increasingly successful in the Metaverse.
Because the Metaverse and NFTs are so new, many artists and fashion designers have been eager to keep tabs on the progression of Hermés Vs. Rothschild, as it will influence how infringement laws and copyright apply to the Metaverse. As well, it is believed to be setting the standard for future issues between digital art and the fashion world. Some people are insinuating fashion houses are more protected than digital artists: Rothschild's attorney said, “It’s a great day for big, luxury brands and a terrible day for artists and the First Amendment.”