"Metabirkins" released during 2021 Miami Art Basel celebrations | Source: l'officielusa

Hermès Sues Digital Creator Mason Rothschild for Birkin NFTs

In another move blurring the lines between digital and real, French luxury fashion house Hermès has accused NFT-Metabirkin creator, Mason Rothschild of trademark infringement, in a 47-page complaint addressed to New York’s Southern District Court.

The lawsuit was filed following the release of Rothschild’s Birkin bag digital knockoffs, marketed in the metaverse on Opensea, with prices reaching up to 9.9 ETH (approximately A$53,000).

“Hermès did not authorise nor consent to the commercialisation or creation of our Birkin bag by Mason Rothschild in the Metaverse”, a Hermès representative said in a statement to the Financial Times.

The Hermès Birkin Bag

With its origins reaching back to 1984, the Hermès tote handbag is a staple of the French luxury house. The Birkin handbag was said to be created on a flight from Paris to London when British actress Jane Birkin sat next to Hermès Chairman Jean-Louis Dumas and complained she had no bag that met the needs of young mothers.

With a sketchbook on hand, the Birkin was born on that same flight. Dumas included a dedicated pocket for baby bottles. In the following decades, the Birkin handbag has become a symbol of wealth and affluence.

Source: Pinterest.

Today, the Hermès Birkin holds the title of the most expensive handbag in the world, with prices reaching up to A$600,000. Even the process of purchasing a Birkin handbag is complex in itself. After an extensive waitlist, you do not have the luxury of choosing colour or size. Hermès also limits their customers to one purchase per year, shrouding the tote bags in exclusivity and creating a flourishing resale market.

An emblem of wealth and success, Birkin handbags have almost become a necessity amongst celebrities.

Source: British Vogue.
Source: Collecting Luxury.

The Metabirkin

Released by digital designer Mason Rothschild, the Metabirkin handbag was born as an attempt by Rothschild to advocate for ‘fur-free’ fashion, through luxury goods in the Metaverse.

The Metabirkin came following a collaboration between Eric Ramirez and Rothschild when a series of Birkin handbag NFTs were sold on Basic Space, for around A$53,000, translating to 10 Ethereum.

The latest collection dropped 100 of the luxury NFTs in a variety of exclusive colours.

The Metabirkin’s not only represented a move for the new generation of digital fashion and retail, but also a way for Hermès fans to get their hands on the already exclusive line of bags.

Source: Luxury Launches
Source: Elle.

The lawsuit filed by Hermès details that the brand’s trademark has been unfairly infringed upon and “rips off” the famous Birkin trademark.

Hermès legal counsel states that Rothschild is “a digital speculator who is seeking to get rich quick by appropriating the brand Metabirkins for use in creating, marketing, selling and facilitating the exchange of digital assets known as non-fungible tokens “NFTs.” Defendant’s Metabirkins brand simply rips off Hermes’ famous Birkin trademark by adding the generic prefix “meta” to the famous trademark Birkin.

The indictment also lists that Rothschild knowingly elected to sell his NFTs as Metabirkins because of their asset value in the physical world and without the use of the Birkin trademark, the Metabirkins would hold no value.

Rothschild has denied all alleged charges and insists his work is protected under the First Amendment, citing Andy Warhol’s paintings of Campbell’s Soup cans.

“I am not creating or selling fake Birkin bags. I’ve made art works that depict imaginary, fur-covered Birkin bags.” Rothschild said in a statement on Instagram.

“The First Amendment gives me the right to make and sell art depicting Birkin bags, just as it gave Andy Warhol the right to make and sell art depicting the Campbell’s soup cans.”

In an interview with Yahoo, Rothschild previously described his Metabirkins as an experiment to see if he could recreate the bags as a digital commodity.

For me, there’s nothing more iconic than the Hermès Birkin bag.

Mason Rothschild

Despite the obvious correlation between the Metabirkin NFTs and real-life Birkin handbags, the case for infringement may not be clear cut. A cease and desist letter was sent to Rothschild in December 2021, detailing a long list of Hermès trademarks, covering essentially everything they owned.

However, the category relating to electronics, that is “images, sound and data concerning wearing apparel, shoes, handbags, watches,” was cancelled due to a lack of evidence.

The legal issue that will have to be debated is whether or not consumers were aware they were buying a fake Hermès handbag or not. If Metabirkin owners purchased their handbag on the Metaverse thinking it was released by Hermès, this represents an issue for Rothschild.

Whilst for some the distinction between NFTs in the Metaverse and real-life luxury brands may be obvious, this legal case represents an even blurrier line between the online and real-world, regarding intellectual property rights.

If you’re interested in luxury brands and their potential in the Metaverse, check out NFTs and the Metaverse: The Next Lucrative Market for Luxury brands.

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