Concerns were expressed by a court in the Hermès MetaBirkin NFT appeal that enforcing the decision would restrict creative expression involving well-known brands.
On Wednesday, a US appeals court judge questioned Hermès’ victory in a trial against an artist who was accused of violating their rights by creating NFT replicas of their well-known Birkin bags.
Senior US Circuit court Pierre Leval made the suggestion during a session in the 2nd US Circuit Court of Appeals that the district court might have misled the jury prior to their finding that Mason Rothschild’s “MetaBirkins” NFTs infringed upon Hermès’ trademarks, according to Reuters.
One of the three justices considering the appeal, Leval, voiced some reservations. According to reports, he questioned whether upholding Hermès’ victory would prevent artists from incorporating well-known brands into their creations. The court likened this to Andy Warhol’s artwork that used Campbell’s Soup.
He also questioned Hermès’ lawyer about if this case may forbid artists from creating pieces that aim to criticize well-known commercial brands.
He further questioned whether Rothschild’s intention to deceive customers actually met the necessary legal requirements, citing Judge Jed Rakoff’s advice to the jury that resulted in a permanent injunction on Rothschild’s NFT sales for Hermès.
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The Hermès MetaBirkin NFT Trial Initiates a Discussion on Artistic Expression vs. Trademark
According to Cryptonews, the appeals court struggled to strike a balance between First Amendment rights and trademark rights, particularly in the wake of the Supreme Court’s decision to support Jack Daniel’s over a company that produced dog toys in the style of whiskey bottles.
In the meantime, Rothschild’s attorney was questioned by Circuit Judge Denny Chin on whether the artist took advantage of Hermès’s reputation by using its brand. He made the analogy to a recent case in which the 2nd Circuit decided against artists selling altered shoe designs in favor of Vans.
Hermès NFT Case, Rothschild loses in court and is appealed on grounds of free speech.
Hermès filed a lawsuit against Rothschild in January 2022 for producing and marketing NFTs known as “MetaBirkins,” which bore a striking resemblance to their renowned Birkin handbag, which was named for Jane Birkin.
Hermès asserted that Rothschild’s NFTs might damage the prestige of the Birkin brand by undermining its unique uniqueness. In order to capitalize on Hermès’s brand, the corporation accused him of cybersquatting by registering sites such as metabirkins.com.
A New York jury found Rothschild guilty of trademark infringement, dilution, and cybersquatting in the first NFT trademark case to go to trial.
In his appeal to the 2nd US Circuit Court, Rothschild claimed that his MetaBirkins were First Amendment-protected works of art that critiqued luxury and materialism.
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