Luxury brand Hermès has won the first of three landmark NFT trials due to start this year.
Hermès today convinced a jury in Manhattan that Mason Rothschild, the digital artist behind ‘MetaBirkin’ non-fungible token collection, has violated Hermès’ rights to the ‘Birkin’ trademark.
A nine-person jury returned a verdict on February 8, awarding Hermès a total of $133,000 in damages and dashing the Rothschild hopes that his NFTs would be protected as free speech.
In a lawsuit filed last January, Hermès alleges that Rothschild illegally sold MetaBirkin bags as NFTs and made a profit of more than 55 Ethereum. They claimed that this had caused irreparable damage to the Hermès brand, and found that many news outlets had mistakenly attributed the project to the official Birkin maker.
“If you want to bring your bag into this virtual world, there’s always a reference to Meta Birkin.
However, legal analysts say the Rothschild case will have a key expert witness in support of the Rothschilds on the first day of the trial, Jed S. failed to testify before a jury.
Gopnik previously wrote a biography about Andy Warhol. His concept of ‘business his art’ was used to illustrate how Warhol painted various everyday objects such as Campbell’s soup cans and imbued them with new meaning through the act of creation. .
However, that was never intended, as the judge’s ruling that Gopnik was not allowed to testify significantly hampered Rothschild’s defense.
During the trial, Rothschild’s attorneys joined one of Hermès’ expert witnesses who conducted research on behalf of Hermès to determine an “18.7% net confusion rate” among potential Metabirkin NFT purchasers. repeatedly collided. It’s unclear what methodology the experts used, but Rothschild’s lawyers countered with a lower figure, putting the net disruption rate he puts closer to 9.3%. Bloomberg method.
Nonetheless, the Rothschilds seem to have put up an uphill battle throughout the trial, with some evidence brought to the trial by Hermes and proved to be damaging.
Rothschild’s attorney Rhett Millsaps said in his opening argument that it was “perfectly legal for artists to make money from their art,” but that “the First Amendment restricts trademark rights. There is,” he claimed.
The jury disagreed.
Hermès lawyers point to a text message Rothschild sent about Meta Birkin, using words like “pump” and “sill” to seek entry from “whales,” “against famous handbags.” He pointed out the method of “creating the same exclusivity and demand”.
“We are sitting on a gold mine,” Rothschild said in one text promoting the project to potential buyers.
Rothschild attorneys, represented by intellectual property law experts at Lex Lumina PLLC, cited the well-established “Rogers” legal test. Derived from the 1989 judgment Rogers v. Grimaldi case This standard allows artists to use a trademark without consent as long as it meets a basic level of artistic significance and does not deceive consumers.
But legal experts were quick to point out that the ruling would not set a precedent for similar cases in the future. Ryder Ripps v. Yuga Labs case.
According to Brian Fry, a University of Kentucky law professor, “It’s important to remember that this is only a jury verdict in a district court case. will not set a precedent for future conflicts.”
Frye also said the U.S. Supreme Court would hear similar trademark issues this term, and said, “I suspect SCOTUS will take a friendly stance on the First Amendment.”