Legal action is ongoing after Mason Rothchild released a series on Rarible of 100 Birkin bag-inspired non-fungible tokens (NFTs) with simulated fur entitled “MetaBirkin” in December 2021. These NFTs share no affiliation or profits with Hermès, the luxury fashion brand behind the highly coveted “Birkin” bag. Yet, today these NFTs are going for a high of 249 ETH or approximately $780,000, which is nearly double the most expensive Hermès Birkin sold at auction in real life.
However, the current rules on NFT counterfeits in the Metaverse are very unclear and ownership over digitally created products is extremely uncertain. Even if Hermès wins its case against Rothchild, the subject NFTs cannot be erased as they are tokens permanently recorded on the Ethereum blockchain. Nevertheless, this lawsuit is breaking new legal ground for what is to come with intellectual property rights in the world of Web3.
The rise of this NFT series’ popularity has prompted the French fashion house to fight back. Hermès believes that these NFTs have “infringed upon the intellectual property and trademark rights of Hermes and are an example of fake Hermes products in the metaverse”. After failing to stop Rothchild with a cease-and-desist letter, Hermès filed a trademark infringement and dilution lawsuit against Rothchild in New York federal court. However, Rothchild says he “won’t be intimated” and maintains that his virtual interpretation of the famed bag is an artistic commentary on the bags and brand and as such should be considered “fair use”. Furthermore, Rothchild has stated: “[i]t’s quite clear from reading Hermes’ complaint that they don’t understand what an NFT is, or what NFTs do.” In this regard, Rothchild is now attempting to secure a dismissal of the suit based on his First Amendment rights.