Are Brands Protected In the Metaverse? Hermes and NFT Artist Spar In US Court

An anonymous reader quotes a report from The Guardian: Pictures of 100 Birkin bags covered in shaggy, multi-colored fur have become the focus of a court dispute that will decide how digital artists can depict commercial activities in their art and cast new light on whether brands are protected in the metaverse. In the case, being heard this week in a New York federal courtroom, the luxury handbag maker Hermes is challenging an artist who sells the futuristic digital works known as NFTs or non-fungible tokens. Artist and entrepreneur Mason Rothschild created images of the astonishingly expensive Hermes handbag, the Birkin, digitally covered the bags in fur and turned the pictures into an 'art project,' which he called MetaBirkin. Then he sold editions of the images online for total earnings of more than $1m, according to court records.

Hermes promptly sued, claiming the artist was simply 'a digital speculator who is seeking to get rich quick by appropriating' the Hermes brand. The 'Metabirkins brand simply rips off Hermes's famous Birkin trademark by adding the generic prefix 'meta,' read the original complaint filed by Hermes in January last year, noting that the 'meta' in the name refers to the digital metaverse now being pumped by technology innovators as the next big thing in tech profit-making. Rothschild, whose real name is Sonny Estival, countered that he has a first amendment right to depict the hard-to-buy, French handbags in his artwork, just as Andy Warhol portrayed a giant Campbell's soup cans in his famous pop culture silk screens. 'I'm not creating or selling fake Birkin bags. I'm creating art works that depict imaginary, fur-covered Birkin bags,' said Rothschild in a letter to the community after the case was filed. 'The fact that I sell the art using NFTs doesn't change the fact that it's art.' 'One hurdle that Hermes will have to overcome in the case is the fact that US trademark law requires brands to register their trademarks for each specific type of use, so digital sales might require a separate registration,' notes the report.

'In the end, [Michelle Cooke, a partner at the law firm Arentfox Schiff LLP, who advises brands on these types of trademark issues] says the decision might come down to whether the jury believes Rothschild did the MetaBirkin project as an artistic project 'or was it a money-making venture that he cast as an artistic project when he got into trouble.''

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