“Artist’s Sale of $450 Birkin NFTs Violates Trademark Rights: NY Jury”

• An artist who sold virtual Birkins as NFTs was found to have violated Hermès’ trademark rights.
• Mason Rothschild sold his “MetaBirkins” for up to $45,100 each, Hermès said in its complaint.
• A New York jury ruled that the MetaBirkin NFTs are not artworks protected by the First Amendment.

A New York jury ruled on Wednesday that an NFT artist violated the trademark rights of French luxury brand Hermès by selling virtual purses styled after the iconic Birkin handbag.

The case is one of the first in the world to deliberate over whether NFTs are considered art protected by the First Amendment, or just commodities.

The nine-person jury in Manhattan found that virtual handbags were not protected property, and ruled that the NFTs sold by Mason Rothschild were likely to confuse customers into thinking the digital products are affiliated with Hermès and real Birkins.

Rothschild, whose real name is Sonny Estival, calls his digital bags “MetaBirkins.” Eccentric designs in his collection include a bag with tusks and one with a Santa hat resembling the Grinch.

One MetaBirkin created by Rothschild featured an animation of a fetus growing in the bag, which was sold for around $23,500, Vogue Business reported.

Rothschild has released 100 MetaBirkins, but said he had plans to make 1,000 total, according to court filings seen by Insider. Each was typically sold for $450.

Hermès sued Rothschild on January 14, 2022, saying his creations had diluted its Birkin trademark. It claimed in its complaint that the artist had sold $1.1 million worth of MetaBirkins, and that one of the NFTs was sold for as much as $45,100.

Meanwhile, Rothschild’s lawyers said he made around $125,000 in total from the sales of the digital goods, including royalties of 7.5% of secondary sales.

The jury awarded $133,000 to Hermès for trademark infringement, dilution, and cybersquatting — registering a trademark, usually of well-known brands, to ransom it or profit from holding the trademark.

Hermès said in its complaint that MetaBirkin sales stemmed from Rothschild using the name “Birkin,” and that his brand “simply rips off” the luxury firm’s product.

Conversely, Rothschild’s legal team compared the NFTs to Andy Warhol’s 1962 paintings of Campbell’s canned soup, saying they were protected as free speech.

During opening arguments in court, Rothschild’s lawyers challenged whether people rich enough to buy Birkins, which can cost up to $500,000, would really be fooled by the NFT project, The New York Times reported.

“Art doesn’t exist in a vacuum — it’s often about context,” said Rhett Millsaps II, one of Rothschild’s lawyers, per The Times.

In a statement emailed to Insider, Millsaps wrote: “Today was a great day for big brands, and a terrible day for artists and the First Amendment. We look forward to the appeal.”

Representatives for Hermès did not immediately respond to Insider’s request for comment.