Judge grants Hermès request to halt all ‘MetaBirkin’ NFT sales

The MetaBirkin creator argued that his project was protected under the first amendment as artistic

expression; however, that defense ultimately fell short.

French luxury fashion house Hermès has notched another win in its infringement case against artist Mason Rothschild after a United States judge ordered a permanent injunction on all “MetaBirkin” nonfungible token (NFT) sales.

“[The] defendant’s entire scheme here was to defraud consumers into believing, by his use of variations on Hermes’ trademarks, that Hermes was endorsing his lucrative MetaBirkins NFTs,“ Rakoff said, adding that

The MetaBirkin collection consists of 100 NFT artworks depicting furry Birkin style handbags, with Rothschild reportedly generating more than $1 million worth of sales from the project.

In February, the court ruled that Rothschild had violated Hermès trademark following a nine-member jury verdict, with the artist ordered to pay $133,000 in damages.

Rothschild had argued that his project was an artistic expression protected by the first amendment, in a similar vein that enabled Andy Warhol to legally make and sell art featuring Campbell’s soup cans.

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Take nine people off the street right now and ask them to tell you what art is but the kicker is whatever they say will now become the undisputed truth. That’s what happened today.

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Additionally, the artist asserted that he hadn’t explicitly misled consumers, as he had provided disclaimers explaining that Hermès had no affiliation.

However, the judge and jury also refuted this, as the use of the word “Birkins” was brought into question.

“The jury found that his decision to use Hermès’ trademarks in the name and design of the MetaBirkins NFTs — not just his marketing and sales techniques — was explicitly misleading and rejected his disclaimer defense,” the court doc reads.

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