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Recent Lawsuit Raises Novel Legal Issues Involving Fashion Oriented NFTs


January 28, 2022 at 5:03:45 PM

<p style="text-align: justify;">Counterfeit handbags have plagued the fashion industry for decades. Now, top fashion brands face novel intellectual property threats with the rise of <em>virtual </em>fashion items.</p>
<p style="text-align: justify;">On January 14, 2022, Hermès International and Hermès Paris, Inc. filed suit against artist Mason Rothschild for his creation and sale of “METABIRKINS” as non-fungible tokens (NFTs). According to the complaint, “Defendant’s METABIRKINS brand rips off Hermès’ famous BIRKIN trademark by adding the generic prefix “meta” to the famous trademark BIRKIN.”</p>
<p style="text-align: justify;">Indeed, the artist’s NFTs depict the iconic Birkin silhouette in a variety of patterns and textures – albeit entirely virtually. Notwithstanding their metaphysical nature, these NFTs allegedly constitute trademark infringement and dilution of the famous Birkin Mark. Hermes’ fears that as more luxury brands explore the NFT space, consumers may believe the NFTs to be affiliated with them. They also fear that NFT usage will devalue their name and have consumers “think less highly of them.”</p>
<p style="text-align: justify;">In contrast, the artist believes the First Amendment vests him with the right to make and sell these NFTs, “just as it gave Andy Warhol the right to make and sell art depicting Campbell’s soup cans.” He released the following statement concerning the lawsuit:<a href=""><img class="size-medium wp-image-24917 aligncenter" src="" alt="" width="288" height="300" /></a></p>
<p style="text-align: justify;">Rothschild's statement released on Instagram.</p>
<p style="text-align: justify;">The Hermes case is particularly of interest to artists, collectors, and insurers alike, as it is one of the first to center on trademark issues with fashion oriented NFTs. Considering how obscure copyright and trademark law can be <em>without </em>NFTs, this first-of-its-kind matter is one to keep a close eye on. WCM will monitor this interesting development and report on any significant developments.</p>
<p style="text-align: justify;">Thank you to Alexandra Deplas for her contribution to this post. Please contact <a href="">Andrew Gibbs</a> with any questions.</p>

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