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French luxury fashion house Hermès International has won yet another victory in an infringement case against artist Mason Rothschild after a Manhattan judge issued a permanent ban on all sales of non-fungible MetaBirkin tokens.
Hermès originally sent a request to the Southern District of New York in March to block all MetaBirkin NFT sales.
Manhattan U.S. District Judge Jed Rakoff formally granted the request on June 23 as he was skeptical of Rothschild’s defense against the Hermès lawsuit, questioning Rothschild’s ongoing marketing of the project.
“The whole scheme [ответчика] here was to deceive consumers into believing, using variations of the Hermes trademarks, that Hermes endorses its lucrative MetaBirkins NFTs,” Judge Rakoff said, adding that:
“Nothing in the First Amendment exempts him from liability for such a scheme.”
The MetaBirkin collection consists of 100 NFT artwork depicting Birkin-style fur bags, and Rothschild reportedly generated over $1 million in sales from the project.
— MetaBirkins (@MetaBirkins) September 12, 2022
The legal dispute began in January after Hermès accused Rothschild’s NFT collection of misusing the Birkin trademark and suggesting to customers that the brand was supporting the project.
In February, a court ruled that Rothschild had infringed the Hermès trademark following a nine-member jury verdict, and the artist was ordered to pay $133,000 in damages.
Rothschild claimed that his project was First Amendment-protected artistic expression, in the same vein that allowed Andy Warhol to legally create and sell artwork depicting Campbell’s soup cans.
Take nine people off the street right now and ask them to tell you what art is but the kicker is whatever they say will now become the undisputed truth. That’s what happened today.
A multibillion dollar luxury fashion house who says they “care” about art and artists but..
— Mason Rothschild (@MasonRothschild) February 8, 2023
In addition, the artist claimed that he was clearly not misleading consumers as he provided a disclaimer explaining that Hermès had nothing to do with it.
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However, the judge and jury also rebutted this as the use of the word “Birkins” was questioned.
“The jury concluded that his decision to use the Hermès trademarks in the name and design of the NFT MetaBirkins – and not just his marketing and sales practices – was in itself manifestly misleading, and rejected his defense of disclaimer,” it says. in a court document.