In 2021, artist Mason Rothschild launched metabirkins.com and announced that he would be selling non-fungible tokens (“NFTs”) called MetaBirkins. The MetaBirkins offering consisted of 100 NFTs depicted as fury purses that resembled the well-known Birkin bag. Hermѐs, owner of the BIRKIN trademark as well as the BIRKIN trade dress, took issue with Rothschild’s MetaBirkins NFTs and sent a cease and desist letter. Despite Hermѐs’ demands, Rothschild refused to discontinue the sale of the MetaBirkins NFTs.

Photos from Complaint filed by Hermѐs International in Hermès International, et al. v. Mason Rothschild (1:22-cv-00384)

On January 14, 2021, Hermѐs filed suit against Rothschild in the Southern District of New York. After unsuccessful motions to end the case by both parties, the case proceeded to trial this week. Hermѐs claims that Rothschild’s actions amount to trademark infringement, dilution, unfair competition, and cybersquatting. Rothschild argues that his use and adoption of MetaBirkins is art and a commentary on the Birkin bag and should therefore be protected under the First Amendment as free speech. Hermѐs is seeking monetary damages and injunctive relief.   The world will be watching as this is one of the first trials that will explore legal issues that arise when trademarks and NFTs collide.