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French luxury brand Hermes wins NFT trademark infringement lawsuit

French luxury brand Hermes has won a lawsuit against an artist who depicted its famous Birkin bags in a non-fungible token (NFT) collection. The artist argued that NFTs should be covered by the First Amendment to the US Constitution, but the jury was out.

Hermes wins lawsuit against NFT creator ‘Metabirkins’

French luxury design house Hermes has won a lawsuit against Mason Rothschild, the artist behind the “Metabirkins” non-expendable token (NFT) collection, which features digital renderings of the popular Hermes Birkin bags.

Rothschild created the Metabirkins NFT Collection in 2021, which he described as “a collection of 100 unique NFTs crafted from faux leather in a variety of contemporary colors and graphic executions.” The collection has earned over 200 ETH in sales, which is equivalent to $331,684 at the time of writing. Hermes complained and sued the artist early last year for trademark infringement.

Rothschild argued that NFTs should be covered by the First Amendment to the United States Constitution. The artist’s defense team compared his work to that of Andy Warhol, who depicted Campbell’s soup cans and Coca-Cola bottles in his artwork. Rothschild argued in court:

   These images and the NFTs that authenticate them are not wallets. They carry nothing but meaning.

Hermes’ lawyers accused Rothschild of “stealing the goodwill of famous Hermes intellectual property in order to create and sell his own line of products.” They argued that customers tend to confuse Metabirkins NFTs with genuine Hermes products. They even said that the Metabirkins URL is very similar to the one used by the luxury brand. Oren Warshavsky, a lawyer representing Hermes, told the court: “The reason for these sales was the Birkin name.”

After deliberating for two days, a New York jury returned a verdict Wednesday saying it “found defendant liable for trademark infringement” and “trademark dilution.” Furthermore, they found that “First Amendment protection does not preclude liability.” The jury then awarded Hermes $133,000 in damages: $110,000 for trademark infringement and $23,000 for cybersquatting.

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