Hermès has sued Mason Rothschild, the person behind MetaBirkin. In mid-December, Hermès had already announced that this was one Infringement of trademark law acts and sent a cease and desist letter to Rothschild. On Monday, the company filed a lawsuit in the New York Southern District Court alleging trademark infringement. In it, Hermès calls on Rothschild to cease its activities, to hand over the MetaBirkin domain rights to Hermès, and to pay damages. The 47-page complaint was made public on Monday.
subject of the lawsuit
Mason Rothschild had 100 examples of virtual, fake-fur covered Birkin bags for sale in the Metaverse in early December. The first MetaBirkin was sold on the OpenSea platform for $42,000. The specimens achieved a retail value of over one million US dollars. Following Hermès’ cease and desist letter, OpenSeas had removed the MetaBirkins from its website. Rothschild had driven the marketing from his own website and directed those interested to other platforms such as LooksRare, Rarible and Zora where the MetaBirkins can be traded.
Hermès accuses Rothschild of brand dilution in the lawsuit. The French luxury fashion house refers, among other things, to the operation of the Instagram and Twitter channels, which contain links to sales platforms and do not expressly differentiate themselves from the Hermès brand. This would give the impression that the MetaBirkins are a Hermès product. Additionally, Rothschild would benefit from the use of the term “Birkin” which is inevitably associated with Hermès. He would also take advantage of the Birkin’s reputation and business value.
Between artistic interpretation and plagiarism
Rothschild had already caused a stir with a unique Baby Birkin NFT in April. Rothschild’s virtual Baby Birkin version was auctioned at $23,500, exceeding some of the originals. Following the success of the NFT within the “MetaBirkin community”, Mason Rothschild had begun designing a new series of digital Birkins. According to his own statements, he was inspired to do this by the rise of alternative materials and initiatives that advocate the ban of materials of animal origin. The MetaBirkins went viral within a very short space of time and are receiving a great response on social media.
In his argument against Hermès’ cease and desist letter, Rothschild referred primarily to the first article of the US Constitution, which refers to freedom of speech. He has “every right to create art based on his own interpretations of the world.” His Birkin creations are “playful, abstract versions of pre-existing fashion-cultural landmarks,” he said in the open letter, which he self-published on December 22. Rothschild has not yet issued a public statement on the lawsuit.
The legal situation in the Metaverse remains unclear
The MetaBirkin controversy triggered a discussion about trademark law and freedom of creative work. With the arrival of many well-known fashion greats, such as among others Nike, Adidas, Givenchy and Karl Lagerfeld, there is a growing question of how trademark law designed for physical products applies to digital products and NFTs. As the Metaverse becomes more commercial, the urgency of clear rules and jurisdiction becomes ever clearer.