UPDATE June 25, 2023
“Defendant’s entire scheme here was to defraud consumers into believing, by his use of variations on Hermès’ trademarks, that Hermès was endorsing his lucrative MetaBirkins NFTs. Nothing in the First Amendment insulates him from liability for such a scheme.”
Read decision here
UPDATE March 16, 2023
And now, artist Mason Rothschild, who lost the trademark infringement case to Hermès in a jury trial, wants a new trial. He alleges the jury instructions were improper and prejudiced the verdict. Additionally, Rothschild claims that Judge Jed Rakoff improperly excluded the testimony of Rothschild’s witness, art critic Blake Gopnik. Gopnik was slated to analogize the MetaBirkin to Andy Warhol’s famous Campbell’s soup cans. Given that both of these challenges relate to decisions of Judge Rakoff, it’s a tough ask – the Judge would be reversing his well-considered prior positions.
Additionally, Rothschild submitted his opposition to Hermès’ request for an injunction. As discussed below, Hermès seeks to have the MetaBirkin website transferred to it to prevent further sales and to have Rothschild turn over any profits from sales since the date of the verdict. Rothschild alternatively suggests that sales continue with the use of a “disclaimer” rather than turning over the intellectual property.
And, of course, we expect Rothschild to appeal the jury verdict. This one’s not over yet.
Read more here
March 8, 2023
We knew it wasn’t over . . . and that MetaBirkin creator Mason Rothschild would and will appeal. We expect that soon.
However, Hermès now has taken additional action to prevent Rothschild from profiting from his designs. According to Hermès, Rothschild continues to market his MetaBirkin NFTs. Last week it requested that the court not only stop him from using the Birkin trademarks, but also that it require him to transfer to Hermès the MetaBirkin website, the NFTs he owns, and any income from the sale of the NFTs since the jury verdict.
Stay tuned . . . and read more here
Image courtesy: metabirkins.com