Hermès has secured the bag.
The French fashion house has prevailed in its fight against an artist who was selling NFTs of the iconic Birkin bag, The Wall Street Journal reported on Wednesday. Mason Rothschild was ordered to pay the the brand $133,000—although the long-term implications may be much more valuable than that sum.
“Great day for big brands. Terrible day for artists and the First Amendment,” Rothschild’s attorney, Rhett Millsaps, said in a statement. “This is far from over,” Rothschild added in a statement of his own.
The saga dates back more than a year, after Rothschild launched the MetaBirkin, a digital version of the pricey purse. He created 100 NFTs that sometimes sold for nearly as much as an actual Birkin, which can cost tens of thousands—or hundreds of thousands—of dollars. In January 2022, Hermès sent the artist a cease-and-desist letter, and eventually the ordeal wound its way to the courts.
Hermès argued that Rothschild was profiting unlawfully off from its product, and that the MetaBirkin diluted its brand and confused consumers. Additionally, the company said the NFT preempted its ability to sell similar products in the metaverse, which it doesn’t currently do but which many other companies have experimented with.
Rothschild, however, argued that his digital art was protected by the First Amendment. During the trial, his attorneys said that Hermès’s trademark rights didn’t apply to the MetaBirkins, because they were constitutionally protected artwork trying to make a statement about conspicuous consumption. The jury wasn’t persuaded, however, ruling in favor of the French brand.
The Hermès victory may indeed represent a big win for brands as they navigate the wild west of virtual reality and the metaverse. “It seems this case will not end up making any changes to the IP doctrine,” the intellectual-property lawyer Mauricio Uribe told The Wall Street Journal.
So if you’re still interested in acquiring a Birkin, you can expect to do something decidedly un-meta: join the very real Hermès wait list.