French luxury fashion house Hermès International has scored another victory in its infringement lawsuit against artist Mason Rothschild, after a Manhattan judge ordered a permanent injunction on all “MetaBirkin” non-fungible token sales.
Hermès initially submitted the request to the Southern District of New York in March to block all sales of MetaBirkin NFTs.
Manhattan-based US District Judge Jed Rakoff officially granted the request on June 23, as he offered a skeptical take on Rothschild’s defense against Hermès’ suit, while questioning Rothchild’s continued sales of project.
“[The] Defendant’s entire scheme here was to deceive consumers into believing, through his use of variations of Hermes’ trademarks, that Hermes endorsed his beneficial MetaBirkins NFTs,” Judge Rakoff said, which added that:
“Nothing in the First Amendment precludes him from liability for such a scheme.”
The MetaBirkin collection consists of 100 NFT artworks depicting feathered Birkin style handbags, with Rothschild reportedly generating more than $1 million worth of sales from the project.
The MetaBirkins 78 was sold for just 2.3 Ether (≈$4,000) to @wyaricky on @LooksRareNFT! pic.twitter.com/8RPLukg8WY
— MetaBirkins (@MetaBirkins) September 12, 2022
The legal dispute began in January, after Hermès accused Rothschild’s NFT collection of improperly using its Birkin trademark and leading customers to believe the brand supported the project.
In February, the court ruled that Rothschild violated the Hermès trademark after a nine-member jury verdict, with the artist ordered to pay $133,000 in damages.
Rothschild argued that his project was an artistic expression protected by the first amendment, in the same vein that enabled Andy Warhol to legally create and sell art with Campbell’s soup cans.
Take nine people off the street today and ask them to tell you what art is but the kicker is whatever they say can now be indisputable truth. That’s what happened today.
A multibillion dollar luxury fashion house that says they “care” about art and artists but..
– Mason Rothschild (@MasonRothschild) February 8, 2023
In addition, the artist stated that he did not clearly mislead consumers, as he provided disclaimers explaining that Hermès had no affiliation.
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However, the judge and jury also denied this, because the use of the word “Birkins” was in question.
“The jury found that her decision to use Hermès’ trademarks in the name and design of the MetaBirkins NFTs – and not only in her marketing and sales techniques – was itself patently misleading, and rejected her disclaimer defense ,” the court doc read.
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