MetaBirkins NFT creator, Hermes square off in US trademark appeal
By Blake Brittain
Oct 23 -A U.S. appeals court judge expressed skepticism on Wednesday about Hermes' HRMS.PA trial win against an artist the company accused of violating its rights with his digital non-fungible token (NFT) versions of its famous Birkin bags.
Senior U.S. Circuit Judge Pierre Leval said during a hearing at the 2nd U.S. Circuit Court of Appeals that a federal district judge may have instructed the jury improperly before it found that Mason Rothschild's "MetaBirkins" infringed Hermes' trademarks.
Leval, one of three judges hearing the appeal, questioned whether upholding Hermes' win could prevent artists from incorporating famous brands into works like Andy Warhol's Campbell Soup series.
He asked a Hermes attorney if the case could "essentially preclude" artists from making art whose "basic premise is to comment on some famous thing in commerce."
NFTs are unique tokens on blockchain networks often used to verify ownership of digital art. Hermes sued Rothschild in 2022 over his MetaBirkins, 100 NFTs associated with images depicting the luxury house's prized Birkin handbags covered in colorful fur.
Hermes in its lawsuit called Rothschild a "digital speculator" and the NFTs a "get rich quick" scheme that created the false impression that the fashion house endorsed his work. Rothschild, whose legal name is Sonny Estival, countered that the works were an absurdist statement on luxury goods and immune from the lawsuit based on the U.S. Constitution's First Amendment.
A jury ruled for Hermes last year and awarded it $133,000 in damages. U.S. District Judge Jed Rakoff later granted Hermes' request for a permanent ban on sales of the tokens.
The appeals court grappled with how to apply the balancing test between trademark rights and the First Amendment in the wake of a Supreme Court ruling for Jack Daniel's against a maker of whiskey-bottle-shaped dog toys. Leval on Wednesday also cast doubt on Rakoff's instruction for the jury to consider Rothschild's alleged intent to deceive consumers, which he said was "decidedly different" from the relevant test.
"I find that rather confusing," Rakoff said.
Circuit Judge Denny Chin, however, questioned Rothschild's attorney about whether the artist used Hermes' branding to take advantage of the company's reputation in order to sell goods, like in a recent case in which the 2nd Circuit ruled for Vans against artists selling distorted versions of its shoes.
The case is Hermes International v. Rothschild, 2nd U.S. Circuit Court of Appeals, No. 23-1081.
For Rothschild: Chris Sprigman of Lex Lumina
For Hermes: Mark DeLaquil of Baker & Hostetler
Read more:
Hermes wins U.S. trademark trial over 'MetaBirkin' NFTs
Hermes wins permanent ban on 'MetaBirkin' NFT sales in US lawsuit
Reporting by Blake Brittain in Washington
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