Appeals Court Raises Doubts About Hermès’ Victory in MetaBirkin NFT Lawsuit

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.