NFTs Found to Infringe Hermès Trademark

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In a case with clear implications for non-fungible token art-based projects, a federal jury in the case of Hermès International, et al. v. Mason Rothschild, 1:22-cv-00384 (SDNY), found in favor of fashion brand Hermès in its lawsuit concerning digital artwork consisting of images of Hermès’ Birkin handbag.

Specifically, the jury found that Rothschild was liable for trademark infringement, dilution, and cybersquatting, and rejected the defense that he was shielded by First Amendment protections. The case centered around a collection of digital images titled “MetaBirkins,” each of which depicted a unique image of a blurry faux-fur-covered Birkin handbag. Rothschild used NFTs to sell such digital images to individual buyers so that each of the NFTs signified sole ownership of a particular “MetaBirkin” digital image. In addition, Rothschild employed a “smart contract” for each of the “MetaBirkin” NFTs where he retained the power to change the image, title, or other attributes associated with the NFTs.

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