MetaBirkin creator rails at Hermès’ ‘unclean hands’ and alleges smear campaign
Hermès’ representatives and expert witnesses at trial “acted dishonestly at trial” | Defeated ‘artist’ insists that fashion house has tarred his reputation | Full details on renewed motion.
In the latest development in the increasingly bitter MetaBirkin dispute, Mason Rothschild has filed a strongly-worded counter motion to luxury brand Hermès’ request for a permanent injunction.
Rothschild, who created and sold digital versions of the bag, filed two court submissions on Tuesday, March 14, comprising his response to Hermès’ motion and his renewed motion for judgment as a matter of law or new trial.
Following its high-profile victory against Rothschild in February, Hermès filed a motion for permanent injunctive relief last week.
It is seeking to force the artist to turn over to Hermès all materials related to the MetaBirkins NFT artworks, including the MetaBirkins smart contract as well as the website domain and social media handles associated with his project.
Rothschild has asked the court to deny Hermès’ request in its entirety because of “the dishonest conduct of Hermès’ representative and expert witnesses at trial”.
‘Misleading statements’
In his motion, he contended that Hermès’ global general counsel and hired experts made “numerous false and misleading statements in their trial testimony in their effort to secure a jury verdict at any cost”.
He goes on to allege that Hermès’ global general counsel and witness, Nicolas Martin, testified on direct examination that Hermès had not “interacted with Rothschild” after sending its cease-and-desist letter regarding MetaBirkins.
This, he insisted, deliberately created the false impression that Rothschild had simply ignored the letter. On the contrary, he insisted that he did respond promptly, and then further engaged in settlement discussions with Hermès. The French fashion house also hired experts who gave materially false testimony, contended Rothschild.
Giving an example, he argued that in an effort to undermine his rebuttal survey expert at trial, Hermès’ survey expert, Bruce Isaacson denied knowing Rothschild’s proffered expert witness, David Neal
But this assertion, according to Rothschild, was demonstrably false, as the two had worked together before.
He alleged that post-trial social media comments made by the jury foreperson illustrated the success of these alleged falsehoods. The jury foreperson, he claimed, posted a comment on LinkedIn after the trial justifying the jury’s verdict by incorrectly stating that Rothschild didn’t disclaim the relationship to Hermès and had failed to correct major media outlets that had erroneously assumed an association.
This post also held that Rothschild had ignored a cease and desist and tried to “hide under the First Amendment”, added the filing. Rothschild further insisted that: “If Hermès were confident in its legal position on the real facts of the case, there would be no reason for Hermès to engage in an inexcusable pattern of duplicity in pressing its case”.
‘Unclean hands’
Hermès, he said, had no excuse to “throw stones from its glass house”, and he urged the court to take into account Hermès’ “unclean hands” on its motion for equitable relief.
Rothschild further defended his First Amendment rights, insisting that he has only used the ‘Birkin’ mark only to promote the MetaBirkins NFT artworks, “which are indisputably noncommercial speech protected by the First Amendment—not consumer products like the products at issue in the inapposite cases cited by Hermès in its motion brief”.
If the court does not deny injunctive relief to Hermès on that basis, Rothschild has asked it to order the use of a disclaimer with promotion and sales of MetaBirkins to protect his First Amendment rights and the rights of those who have bought the MetaBirkins.
The ‘artist’ further insisted that despite Hermès’ repeated refrain that it is not seeking to punish him, the luxury brand has sought to do just that with “its grossly overreaching request for injunctive relief”.
The luxury brand’s motion brief, he added, “gratuitously attempts” to smear him. Additionally, Rothschild's team has filed a renewed motion for judgment as a matter of law or new trial that details the errors made by the court in sending the case to a jury and in excluding at trial the expert testimony of art critic and historian Blake Gopnik.
According to Rothschild, this motion represents “a crucial moment in the legal proceedings”.
