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Hermès sues NFT creator over ‘MetaBirkin’ sales

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Hermès is suing NFT creator Mason Rothschild, who found viral success marketing a range of digital assets he calls “MetaBirkins.”

The French luxury house ditched its notorious low-key stance in order to draw the guns on Rothschild in a 47-page lawsuit filed in New York’s Southern District Court on Friday, calling the designer a “digital speculator seeking to get rich quick”.

The complaint, which was first reported on The law of fashion, raises questions about how trademark protections for real-world objects will be applied in the digital realm as commercial activity heats up in the metaverse. Brands such as Balenciaga and Nike are experimenting with virtual fashion. Non-fungible tokens, or NFTs (unique digital assets authenticated using blockchain technology), representing fashion items have sold for millions in recent months.

Birkin’s digital Rothschild dupes, which feature fur-covered bags in the shape of the iconic bags, first sold online in December for $42,000. The bags sell for over $10,000 in the physical world and are particularly coveted in the resale market due to their limited production.

Weeks later, NFT exchange OpenSea removed MetaBirkins from its online exchange in response to a cease-and-desist letter from Hermes, but Rothschild continued to trade them on its website, linking visitors to other exchanges where they remain available to buy and sell.

Rothschild claims that as an artist his activities are protected by the First Amendment guaranteeing freedom of expression, calling the MetaBirkins “a playful abstraction of an existing landmark of fashion culture.” Hermès rejected this interpretation.

Rothschild “simply tears the famous Birkin brand from Hermès by adding the generic prefix ‘meta'”, the lawyer for Hermès alleged in the lawsuit. “There is no doubt that this success stems from its confusing and dilutive use of famous Hermès brands,” the company added.

The company argues that without court action, MetaBirkins could “ultimately prevent Hermès from offering products and services in virtual marketplaces that are uniquely associated with Hermès and meet Hermès quality standards.” Hermès wants the court to compel Rothschild to cease operations, assign the MetaBirkins.com domain name to Hermès, and pay damages, including its profits from the sale of the digital assets.

“Although a digital image connected to an NFT may reflect some artistic creativity, just as a T-shirt or greeting card may reflect some artistic creativity, the title “artist” does not confer a license to use of an equivalent to the famous Birkin in a manner calculated to mislead consumers and undermine that brand’s ability to identify Hermès as the sole source of products sold under the Birkin brand,” the company said.

Rothschild did not immediately respond to a request for comment.

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