18 January 2022TrademarksMuireann Bolger

Hermès sues ‘get rich quick’ creator of handbag NFTs

Hermès has accused a self-described artist who developed non-fungible tokens (NFTs) of the fashion brand’s iconic Birkin bag of trademark infringement.

The French luxury brand filed the lawsuit against entrepreneur Mason Rothschild at the US District Court for the Eastern District of New York on January 14.

In the suit, Hermès contended that Rothschild’s ‘ MetaBirkins’ NFTs simply rip off Hermès’ Birkin bag trademark by adding the generic prefix “meta”.

“Meta” and “ metaverse” refer to virtual worlds and economies where digital assets such as NFTs can be sold and traded.

‘Virtual rights’

The fashion house criticised Rothschild as a digital speculator who is “seeking to get rich quick” by appropriating the brand ‘MetaBirkins’, while endeavouring to make his fortune by swapping out Hermès’ “real life” rights for “virtual rights”.

According to the lawsuit, he encourages others to create ‘MetaBirkins’ with his “Build-a-MetaBirkin” contest which “further damages and dilutes the ‘Birkin’ mark”.

Hermès insists that Rothschild’s adoption of the ‘MetaBirkins’ trademark has brought him great financial success in a matter of weeks. As of January 6, 2022,  the total volume of sales for the NFTs surpassed $1.1 million, with a floor price of $15,200, and the highest sale at $45,100, according to Hermès.

“There can be no doubt that this success arises from his confusing and dilutive use of Hermès’ famous trademarks. He has announced to his followers his plans to develop his own “decentralised NFT exchange” under the ‘MetaBirkins’ brand,” added the brand.

‘NFTs as art’?

In response to these allegations, Rothschild posted a statement on Twitter, in which he decried the claims as groundless and argued that he is engaged in making artworks that depict imaginary fur-covered Birkin bags.

He went on to insist that the first amendment of the US constitution gives him the right to make and sell art that depicts Birkin bags, “just as it gave Andy Warhol the right to make and sell art depicting Campbell soup cans”, adding: “The fact that I sell NFTs doesn’t change the fact that it’s art.”

The fashion house poured scorn on Rothschild’s efforts to “immunise himself from the legal consequences of misappropriation of Hermès’ famous trademarks by proclaiming that he is solely an artist”.

It contended that while a digital image connected to an NFT may reflect some artistic creativity, just as a t-shirt or a greeting card may reflect some artistic creativity, the title of “artist” does not confer a licence to use an equivalent to the famous ‘Birkin’ trademark in a manner “calculated to mislead consumers”.

Hermès further insisted that Rothschild’s “ruse” must not be sanctioned as he is stealing the goodwill in Hermès’ IP to create and sell his own line of products.

Distinctive designs

“The ‘MetaBirkins’ NFTs feature the distinctive design of the Birkin handbag, which in conjunction with the use of the ‘MetaBirkins’ mark, adds to the likelihood of confusion and dilution,” the designer said.

While Hermès conceded that it had not as yet minted and sold its own NFTs, it insisted that consumers see a wide variety of brands, including luxury fashion brands exploiting the NFT space and “would expect that NFTs featuring famous brands are affiliated with those brands”.

According to Hermès, the ‘MetaBirkins’ brand ultimately preempts Hermès’ ability to offer products and services in virtual marketplaces that are uniquely associated with Hermès and meet Hermès’ quality.

Inspired by actress Jane Birkin, the Birkin handbag was created in 1984 and is handcrafted by experienced artisans in France. Hermès’ claims that manufacturing a single Birkin handbag takes more than 17 hours, while the price of a handbag ranges from thousands of dollars to over £100,000, noted Hermès.

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More on this story

5 January 2021   French luxury brand Hermès has won a case in Japan against a local manufacturer of imitation Birkin bags.
27 July 2015   US customs officials have seized nearly 6,000 counterfeits worth around $3.8 million in separate raids, including belts purporting to be from luxury brand Hermès.
15 February 2022   Artist Mason Rothschild is attempting to secure the dismissal of a trademark infringement suit brought against him by Hermès over Rothschild’s sale of non-fungible tokens of the fashion brand’s iconic Birkin bag.