French Luxury Brand Hermes Wins NFT Trademark Infringement Lawsuit

French luxury brand Hermes has won a lawsuit against an artist who depicted its famous Birkin bags in a non-fungible token (NFT) collection. The artist argued that NFTs should be covered under the U.S. Constitution’s First Amendment but the jury disagreed.

French luxury design house Hermes has won a lawsuit against Mason Rothschild, the artist behind the “Metabirkins” non-fungible token (NFT) collection which features digital depictions of Hermes’ popular Birkin bags.

Rothschild created the Metabirkins NFT collection in 2021, which he described as “a collection of 100 unique NFTs created with faux fur in a range of contemporary color and graphic executions.” The collection has fetched more than 200 ETH in sales, equivalent to $331,684 at the time of writing. Hermes complained and sued the artist early last year for trademark infringement.





Rothschild argued that NFTs should be covered under the U.S. Constitution’s First Amendment. The artist’s defense team compared his work to that of Andy Warhol who depicted Campbell’s soup cans and Coca-Cola bottles in his artwork. Rothschild argued in court:

These images, and the NFTs that authenticate them, are not handbags. They carry nothing but meaning.

Hermes’ lawyers have accused Rothschild of “stealing the goodwill in Hermes’ famous intellectual property to create and sell his own line of products.” They argued that customers are likely to confuse Metabirkins NFTs with genuine Hermes products. They further said the Metabirkins URL is too similar to the one used by the luxury brand. Oren Warshavsky, a lawyer representing Hermes said in court: “The reason for these sales was the Birkin name.”

After deliberating for two days, a New York jury delivered a verdict on Wednesday stating that they “found the defendant liable for trademark infringement” and “trademark dilution.” In addition, they found that “the First Amendment protection does not bar liability.” The jury then awarded Hermes $133,000 in damages — $110,000 for trademark infringement and $23,000 for cybersquatting.

Do you think the NFT creator should have won this lawsuit? Let us know in the comments section below.