what verdict in the NFT case?

Start this Monday, in New York, of the trial between the American artist Mason Rothschild and Hermès, who accuses him of having marketed NFTs representing the iconic Birkin bag.

The affair broke out two years ago in the United States. On a platform specializing in the metaverse, Californian artist Mason Rothschild is selling a “Baby Birkin” for $23,500. A year later, this time it offers “Metabirkins”: a hundred NFT interpretations of the iconic bag launched by Hermès in the early 80s.

In the American press, the Hermès house claims not to have been associated with the project. She denounces an attack on her brand image and her intellectual property rights and she files a complaint for counterfeiting. Mason Rothschild replies that he does not sell “fake Birkin bags”, but “works of art which depict the imagination”. “Works” for which the total volume of sales would have exceeded one million dollars.


The decision of the federal court in Manhattan is eagerly awaited because it will set a precedent, explains Annabelle Gauberti, founding partner and manager of the law firm Crefovi. Does an artist have the right to take the image of a luxury piece to make it an NFT and, what’s more, to market it?

In his defense, Mason Rothschild relies on the First Amendment of the American Constitution, which guarantees freedom of expression. But where Hermès could take advantage is that Mason Rothschild made a profit. According to Annabelle Gauberti: “His legal team is going to have a hard time getting people to accept that it’s just freedom of expression, because he charged for his NFTs”.

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In the meantime, in recent months, Hermès has covered its back by registering its trademark with the United States Patent and Trademark Office. Objective: to protect themselves now more in the areas of NFT, but also cryptocurrencies, online games and the metaverse.

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