Hermès plagiarized by an NFT
Hermès plagiarized by an NFT

Hermès plagiarized by an NFT

By George Michael Belardinelli - 10 Feb 2023

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The Greek messenger Hermès, the inspiration for the French maison’s name, has won the lawsuit over the NFT “Metabirkins” collection.

The credits have come down between Hermès and Mason Rothschild, the artist who created the NFT “Metabirkins” collection.

At the time, the famous French fashion house had accused the artist of exploiting Hermès’ name and image to sell NFTs.

On Wednesday, the ruling finally came that puts an end to the diatribe and becomes crucial for NFTs.

Hermès: the incriminated NFT collection

Mason Rothschild, an eclectic artist in the NFT scene and beyond, launched the “Metabirkins” collection two years ago.

The NFT collection was described by the artist himself as:

“a collection of 100 unique NFTs created with faux fur in a range of contemporary colors and graphic executions.”

Basically, the iconic bags of the French fashion house Hermès replicated with the colors the artist liked using NFTs.

This collection was a huge success to the point of taking home more than 200 ETH ($331,684).

The fashion house did not digest what the artist had done and considered suing.

The Hermès vs Rothschild lawsuit

Hermes claimed that the NFT collection was a play on the brand’s name in order to sell.

Rothschild’s lawsuit has precisely this legal framework namely the trademark infringement.

According to the artist, the claim is non-existent since NFTs would enjoy the First Amendment of the US Constitution.

The jury disagreed with the artist, reasoning that the amendment does not exclude liability.

For the pool of lawyers defending the artist, the Rothschild case is comparable to what Andy Warhol did with Campbell’s soup or Coca-Cola.

The NFT artist commented in court:

“These images and the NFTs that authenticate them are not handbags. They carry nothing but meaning.”

Not of the same opinion were Hermès’s lawyers, who retorted heavily and firmly to what was expressed.

For the prosecution, Mason Rothschild is charged with

“stealing the goodwill in Hermes’ famed intellectual property to create and sell his product line.”

The danger is found in copyright fakes, real works of art that look entirely like the originals but actually are not.

These copyright fakes are often sold for large sums of money, giving the buyer the impression that they have an original.

The possibility of confusing NFT “Metabirkins” with the iconic bags is high.

Moreover, the URL “Metabirkins” for the prosecution is quite similar to the one used by the French Maison so it should be changed.

Hermès lawyer Oren Warshavsky, argues that the NFT campaign inspired by the brand has sold so much precisely because it can be traced back to the Maison.

Last Wednesday in New York City, there was finally an end to the litigation.

A jury in the Big Apple ruled on the Hermès vs Mason Rothschild case over the “Metabirkins” NFTs.

The jury assessed that Rothschild is liable for infringement of the French brand and the dilution of the latter.

There is more than just trademark infringement.

The US First Amendment to which the defense appealed was a boomerang for the artist.

Indeed, the First Amendment does not absolve them of liability that tipped the scales of justice on Hermès.

At the end of the case, Rothschild was fined a sum slightly less than the earnings from the NFT campaign.

Hermès will collect a total of $133,000 in commercial damages and lost revenue.

In addition, the French fashion house must receive $110,000 for brand infringement and an additional $23,000 due to cybersquatting.

The ruling delivered in New York is important because it acts as a watershed for the NFT world.

Everything is convertible to NFTs but trademark infringement is always around the corner and is a dividing line the courts are very sensitive to.

George Michael Belardinelli

A former corporate manager at Carifac Spa and later at Veneto Banca Scpa, blogger and Rhumière, over the years he has become passionate about philosophy and the opportunities that innovation and the media make available to us, in particular the metaverse and augmented reality

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