Hermès defeats Mason Rothschild and ‘MetaBirkins’ NFTs in trial


On February 8, 2023, French luxury house Hermès won a lawsuit against Mason Rothschild, creator of the furry ‘MetaBirkins’ NFTs. After a five-day trial, a jury in a Manhattan federal court concluded that the sale of the non-fungible tokens violated Hermès’ trademark rights in what seems to be the first-ever trial to address intellectual property infringement by NFTs.


The legal battle between the two parties began in December 2021, when the French luxury giant sent a cease-and-desist letter to Rothschild, after which the MetaBirkins were removed from the OpenSea digital marketplace where they had previously been sold. In January 2022, Hermès filed a trademark against the digital artist. ‘I hope Hermès understands that I won’t be intimidated,’ Rothschild had written in an Instagram post announcing the trademark lawsuit.

Hermès wins trademark lawsuit against creator of 'metabirkins' NFTs
pink slushy MetaBirkin | all images via @metabirkins



the first-ever trial to address NFTs and intellectual property law


Throughout the lawsuit, Mason Rothschild maintained that his NFTs were works of art protected by the First Amendment, not unlike Andy Warhol’s renowned Campbell’s Soup Cans, according to Bloomberg Law. The web-based platform also reports that the jury ruled that Rothschild infringed on the trademark of Hermès’ Birkin bags and that his NFTs did not constitute protected expression. The famous luxury group was thus awarded $133,000 in damages.


‘I put on my big boy pants these past couple weeks. Things didn’t shake out my way but the fight is far from over. I pride myself on being early to things, web3 included, and sometimes that comes with growing pains like these. It’s early. Most people don’t understand what this is but it doesn’t mean they never will. It is my duty and the duty of other creators in this space to show them. We keep it moving. Thank you to my team at Lex Lumina PLLC and Harris St. Laurent & Wechsler LLP for sharing the trenches with me. Knocked down. Not dead.’ the digital artist shared on his personal Instagram account after the verdict. Meanwhile, Hermès hasn’t yet issued an official statement on the situation.

Bloomberg Law notes that this lawsuit was the first to address how non-fungible tokens should be examined from an intellectual property law perspective. The case, which has been closely followed by legal experts around the world, could affect future NFT cases that blur the line between art and consumer products.

Hermès wins trademark lawsuit against creator of 'metabirkins' NFTs
Ice Age MetaBirkin with fangs



The ‘Metabirkins’ Collection 


In 2021, digital designer Mason Rothschild created 100 versions of the iconic Hermès Birkin bag as NFTs in a collection that became known as ‘MetaBirkins.’ The series depicts the iconic luxury handbag with colorful, cartoon-like fur instead of leather. Some bags feature famous artworks, such as Starry Night by Van Gogh or The Great Wave off Kanagawa by Katsushika Hokusai. Others have a more experimental looks, like an Ice Age-inspired model with large mammoth fangs or a hot pink Metabirkin that melts like a slushy.


‘MetaBirkins is a playful abstraction of an existing fashion-culture landmark. I re-interpreted the form, materiality and name of a known cultural touchpoint. MetaBirkins are also a commentary on fashion’s history of animal cruelty, and its current empbrace of fur-free initiatives and alternative textiles. My aim is to create additive art projects that contribute positively to the culture.’ Mason Rothschild shares in an Instagram post

Hermès wins trademark lawsuit against creator of 'metabirkins' NFTs
The Wave MetaBirkin

Hermès wins trademark lawsuit against creator of 'metabirkins' NFTs
MetaBirkin for a rainy day

Hermès wins trademark lawsuit against creator of 'metabirkins' NFTs
MetaBirkin ‘for the apes’