Hermès won a lawsuit against Rothschild on the grounds that its trademark was harmed by the MetaBirkin project. Hermès stated that Rothschild’s project would confuse and fool customers by making them purchase virtual goods that are not part of the popular brand.
The conflict has been brewing between the two entities since December 2021, when Rothschild released his collection of 100 furry digital handbags titled MetaBirkins – a name that serves as a nod to Hermès' signature Birkin handbag – at Art Basel in Miami. The project was an extension of a one-of-one NFT artwork called "Baby Birkin," which originally sold at auction in May 2021 for 5.5 ETH, or about $23,500 at the time.
Hermès was not impressed with the project and sent out a cease and desist letter to Rothschild on December 16, 2021. According to Reuters, the collection made over $1 million in sales by January 2022 before OpenSea, and soon thereafter other marketplaces, delisted it from their sites.
Hermès filed a trademark lawsuit against Rothschild on January 14, 2022, claiming that he was "stealing the goodwill in Hermès famous intellectual property to create and sell his own line of products," which could create confusion among their customers. Mason Rothschild reacted with a statement that he posted on Twitter.
Rothschild wanted to bolster his case by referencing a letter sent by the product marketing manager for the Campbell Soup Company to artist Andy Warhol in 1964, which praised his iconic pop-art work featuring a can of Campbell's tomato soup, among others, and wished him success. He also emphasised that "the first amendment gives me every right to create art based on interpretations of the world around me”. Hermes argued that the series “simply rips off Hermès’ famous Birkin trademark,” calling Rothschild “a digital speculator who is seeking to get rich quick by appropriating the brand.”
By confirming that digital items and NFTs must respect trademarks on IRL goods, Hermès' victory sets a precedent for future cases of a similar nature — a blow to creators looking to mimic established brands. Intellectual property disputes over NFTs are common, for instance, Nike has sued reseller StockX for hawking NFTs as digital receipts alongside its running shoes. We continue to observe.