Hermes, NFT creator spar over 'MetaBirkins' in trademark trial

NEW YORK — Hermes International SCA urged a US jury on Monday (Feb 6) to find that a creator of non-fungible tokens violated its trademark for Birkin bags, while lawyers for the "MetaBirkins" maker countered that the images were art.

The French fashion house in 2022 sued Mason Rothschild to recover profits he made by selling NFTs depicting Birkin bags covered in colourful fur without seeking Hermes' permission, claiming Rothschild sought to trick consumers into believing he had partnered with Hermes to sell the digital assets.

"He wanted to cash in on the Birkin name," Oren Warshavsky, a lawyer for Hermes, told jurors in closing arguments in Manhattan federal court after five days of testimony.

Rhett Millsaps, a lawyer for Rothschild, said in his closing argument that the NFTs were an "artistic experiment" protected by the US Constitution's First Amendment.

"He never tried to mislead anyone into believing that the MetaBirkins came from Hermes," Millsaps said, arguing that Rothschild wanted credit for the project.

The case is being watched for its potential to clarify how trademark law will be applied to NFTs, digital assets that can be used to verify an artwork's authenticity.

Warshavsky said Hermes was working on its own Birkin NFTs at the time, and accused Rothschild of "cybersquatting" by trying to beat the company to the market. He said Hermes would not have brought the lawsuit if Rothschild had complied with a December 2021 cease-and-desist letter demanding he stop selling the NFTs.

Jonathan Harris, another lawyer for Rothschild, said his client added a disclaimer stating that Hermes was not associated with the NFTs after he received the letter.

Jurors are expected to begin deliberations later Monday afternoon.

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