A US appeals court judge on Wednesday questioned Hermès’ trial win against an artist accused of infringing on their rights by making NFT versions of their famous Birkin bags. At a session in the 2nd US Circuit Court of Appeals, Senior US Circuit Judge Pierre Leval suggested that the district judge may have missteered the jury before they decided that Mason Rothschild’s “MetaBirkins” NFTs violated Hermès’ trademarks, Reuters reported.
Leval, one of the three judges hearing the appeal, raised certain concerns. He reportedly questioned whether maintaining Hermès’ victory could restrict artists from using well-known brands in their work. The judge compared this to Andy Warhol’s use of Campbell’s Soup in his art. Further, he asked Hermès’ attorney if this case could potentially prevent artists from making works intended to critique prominent commercial brands.
Further, he raised concerns about Judge Jed Rakoff’s guidance to the jury, which led to a permanent injunction against Rothschild’s NFT sales for Hermès, questioning whether Rothschild’s intent to deceive consumers truly matched the relevant legal criteria. Reuters reported that the appeals court wrestled with how to balance trademark rights and First Amendment protections, especially after a Supreme Court ruling in favor of Jack Daniel’s over a company making dog toys shaped like whiskey bottles.
Meanwhile, Circuit Judge Denny Chin questioned Rothschild’s lawyer, asking whether the artist exploited Hermès’s brand to profit from its reputation. He compared this to a recent case where the 2nd Circuit ruled in favor of Vans against artists selling modified shoe designs. In Jan. 2022, Hermès sued Rothschild for creating and selling NFTs called “MetaBirkins,” which closely resembled their iconic Birkin handbag, named after Jane Birkin.
Hermès claimed that Rothschild’s NFTs could weaken the Birkin brand’s distinct identity, potentially harming its reputation. The company also accused him of cybersquatting for registering domains like metabirkins.com to profit from Hermès’s brand.
This was the first NFT trademark dispute to go to trial, with a New York jury ruling against Rothschild for trademark infringement, dilution and cybersquatting. Rothschild appealed to the 2nd US Circuit Court, arguing that his MetaBirkins were an artistic critique of luxury and consumerism, protected under the First Amendment.
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