Hermès sues digital artist for selling unauthorized Birkin bag NFTs in metaverse for up to six figures

French luxury brand Hermès is suing an artist for making counterfeit handbags, i.e. in the Metaverse. The case reveals just how much of a Wild West Web3 remains for artists and businesses.

Earlier this month, the company filed a lawsuit against a digital artist who goes by the name of Mason Rothschild, alleging that his series of MetaBirkins The NFTs – or virtual recreations of the iconic Hermès handbag – constituted trademark infringement.

The NFTs, which came up on the OpenSea platform in December, were sale for 5 to 25 Etheruem on the secondary market (or between $13,000 and $65,000, depending on the current exchange rate). Real Birkin bags can cost between $40,000 and $500,000, according to Business Insider; MetaBirkins were a bit closer to that price range, hitting six figures, before Ethereum crashed this week.

Among the 100 unique NFTs, some feature designs, such as polka dots and smiley faces, while others are adorned with artwork like that of Vincent van Gogh. Starry Night and Leonardo da Vinci mona-lisa.

Referring to Rothschild as a “digital speculator looking to get rich quick,” the filing alleges that the artist’s “MetaBirkins mark simply rips off the famous Birkin mark of Hermès by adding the generic prefix ‘meta’ to the famous Birkin brand.

In addition to damages, the company is asking that an injunction be placed on the Rothschild NFTs, that all previously minted copies be destroyed, and that the domain of the project’s website be surrendered to Hermès.

The case is the first major example of a lawsuit brought by a brand over the use of its trademarks in the metaverse, and its outcome could shape how artists and businesses operate in this still uncharted territory. Similar, but not identical, disputes over ownership have arisen over a series of unauthorized NFT photos of Olive Garden restaurants and Quentin Terantino’s NFTs of pulp Fiction.

Hermès first sent the artist a cease and desist letter in December. In an Instagram post, Rothschild remained indifferent. “While I’m sorry if you were insulted by my art, as an artist I will not apologize for creating it,” he wrote. MetaBirkins were pulled from the main OpenSea market around the same time; they remain struck off.

In his project, Rothschild reinvented famous designer bags with fake dyed hair – a move which, according to the MetaBirkins website, was “inspired by the acceleration of ‘furless’ fashion initiatives and the adoption of textiles alternatives”.

A disclaimer at the bottom of the site reads: “We are not affiliated, associated, authorized, endorsed by, or officially connected in any way with HERMES, or any of its subsidiaries or its affiliates.” (In its lawsuit, Hermès countered that this disclaimer actually made matters worse by “excessively” using the brand name and creating an “unnecessary” link to its website.)

Rothschild argues that his project is within the bounds of free speech. “My lawyers…said it when they said the First Amendment gives me the right to make and sell artwork of Birkin bags, just like it gave Andy Warhol the right to create and sell artwork depicting Campbell’s soup cans,” he wrote in a statement. declaration. He called the fashion company’s claims “baseless” and said he planned to fight them in court. He declined to comment further when contacted by Artnet News.

A spokesperson for Hermès and the company’s attorney, Gerald Joseph Ferguson, also declined to comment.

Rothschild began working on furry digital artwork after the release of “Baby Birkin“, another Hermes handbag-inspired NFT, this time made in collaboration with fellow artist Eric Ramirez and featuring an animation of a fetus. Released last May, it sold for around 13 Ethereum, or approximately $23,500.

The case will be followed closely by other artists and brands. Brian Frye, a law professor at the University of Kentucky, said The law of fashion that the basic questions about trademark infringement – ​​like whether the product might confuse a bona fide consumer – remain the same in the metaverse as they do in the real world. But brands will, going forward, need to “understand what’s going on,” Frye said, “and understand the nature of the claims they want to make and why they want to make them.”

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