Not a month after the MetaBirkins launch, Hermès presented the artist with a cease and desist order. Speaking with the Financial Times, the company declared: “Hermès did not authorise nor consent to the commercialisation or creation of our Birkin bag by Mason Rothschild in the metaverse.” As Hermès’ signature handbag, the Birkin is protected by trademarks that prevent competitors from using its name and imitating its distinctive shape. “These NFTs infringe upon the intellectual property and trademark rights of Hermès and are an example of fake Hermès products in the metaverse,” it continued.

Complying with a request from Hermès, OpenSea removed MetaBirkins from the platform. “I’m disappointed to see that MetaBirkins has been removed from your platform before any legal action was taken, and without due process,” Rothschild voiced in an open letter. While the NFTs remain available for sale on other marketplaces, he airs “To have removed us with no warning or consideration is disheartening, to say the least.”

Rothschild also called upon Hermès to reevaluate their stance, inviting them to “amplify young creatives and artists rather than stomp them out” and “help determine the future of art in the [metaverse].” “The First Amendment gives me every right to create art based on my interpretations of the world around me,” he writes, justifying his artwork. “You can be part of an incredible movement.”

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Rothschild later announced that the brand filed a trademark lawsuit against him on the 14th of January, 2022, noting they failed to provide him or his lawyers with a copy. “Hermès’ claims are groundless,” he proclaims, revealing “we look forward to defeating those claims in court and helping to set a precedent.” In the wake of the storm, the value of the NFTs has drastically fallen. Midway through December 2021, a MetaBirkin sold for no less than USD 19,000. Just eight days after Hermès filed the lawsuit, a MetaBirkin sold for just USD 3,600, less than 20% of its floor price. Still, Rothschild stands his ground: “I hope Hermès understand that I won’t be intimidated.”

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Legal squabbles and intellectual property complications are nothing new. But today, we witness these matters unfold in uncharted territories. Thus, many remain conflicted about who is in the right, and similarly, who will prevail in the court of law.

A number of arguments work in Rothschild’s favour. Firstly, the artist has made it abundantly clear that he bears no formal associations with Hermès. Secondly, Rothschild had slightly tweaked the shape of his MetaBirkins and believes that the MetaBirkins name is “sufficiently different enough to not cause confusion”. Third, as Marc Bain of Business of Fashion explains, Rothschild “could potentially make a case that no shopper would confuse his furry bags for genuine Hermès products.” Finally, this collection was not Rothschild’s first Birkin-inspired NFT. Launched in May 2021, the animated Baby Birkin featured a Birkin-like bag carrying a 40-year-old foetus, “an ironic nod to the iconic bag”. It first sold for about USD 23,500, with no disputes from Hermès, and was last purchased for USD 47,000.

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On the other hand, Hermès claims that the MetaBirkins do not just infringe upon their trademark, but dilute it as well. As luxury brands from Gucci to Burberry enter the NFT market, it is not inconceivable for Hermès to follow suit. Thus, the proliferation and acclaim for Rothschild’s MetaBirkins may interfere with the success of Hermès’ own NFT collection in the future. Should Hermès’ prove successful, the company has demanded that “Rothschild turn over any profits from the MetaBirkins as well as pay damages and Hermès’ legal costs,” and furthermore, hand over all products and advertisements within his possession so these assets can be destroyed.

The legal and creative battles between Rothschild and Hermès are all unfolding against a relatively new, ever-evolving realm, engendering a momentous conflict for which we have no precedent. Regardless of the outcome, the case of Hermès International, et al v Mason Rothschild will dictate the freedoms and limitations of both independent artists and corporate entities in the NFT space.

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Beyond just digital artwork, the MetaBirkins have presented us with a Pandora’s box of questions and challenges we can no longer neglect. How do real-world trademarks for tangible products translate to the digital space? Would a drawing or sculpture of the Hermès Birkin arouse the same contentions? Since MetaBirkins are not handbags, but digital artworks of handbags, can the trademarks apply? If they were uploaded and shared online, but not sold as NFTs, would there still be an issue?

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The proceedings have also underscored characteristics of NFTs and blockchains that may be problematic. Even if Rothschild and all current MetaBirkins owners did surrender their NFTs to Hermès, thus relinquishing their ownership of the files, images of the MetaBirkin will continue to circulate and exist; you cannot strip the Internet or computers all over the world of images of the MetaBirkin. The sharp and sudden drop in the value of MetaBirkins demonstrates the volatility of the NFT market, a significant concern for those who invest and looking to invest in the market. Taking down the MetaBirkins from the OpenSea platform, without so much as notifying Rothschild, similarly causes concern about the safety of other artists’ artwork in the space.

Ultimately, the legal dimensions of NFTs and the metaverse remain a grey area, one that will likely gain clarity as Hermès International, et al v Mason Rothschild progresses. However, if these controversies have proven anything, it is that our digital world is evolving with acceleration like never before, and our laws are struggling to keep up.

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