The future of NFTs and trademarks

Hermès v Rothschild represents the start of a litigation trend and UK brands must take note, says Kerry Russell of Shakespeare Martineau.

In the first case of its kind, a court has ruled that an NFT has infringed a registered trademark. The landmark case between luxury fashion brand, Hermès, and digital artist Mason Rothschild, has potentially opened the door to a slew of similar claims.

Many are speculating whether IP law will need to change to accommodate new digital assets with roots in the metaverse, such as NFTs, however, although the technology involved in this case was complex, the judgement ultimately relied on the fundamentals of IP law. As technology continues to advance, however, some aspects of IP law may need to start evolving in order to continue serving its purpose.

Although this case was filed in Manhattan, New York, it ultimately rested on one of the universal principles of IP, that the two products involved—the iconic Birkin bag designed by Hermès, and Mason Rothschild’s NFT of a ‘MetaBirkin’—were competing interests.