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Blockchain and digital asset trade association, the Chamber of Digital Commerce (CDC), filed an amicus curiae brief on February 9 in support of French design house Hermès in the company’s landmark MetaBirkins case.
Hermés, designer of the legendary Birkin bag, has been caught up in a contentious legal battle that very well may shape how trademarks are applied to digital assets in the Metaverse and beyond.
“Setting A Precedent For The Entire Digital Economy”
The luxury goods company formally sued an artist named Mason Rothschild (real name Sonny Estival) for his creation of “MetaBirkins” – non-fungible tokens (NFTs) depicting Birkin bags that Rothschild was able to sell for tens of thousands of dollars.
“As the Chamber of Digital Commerce stands with Hermès in this case, we are not just advocating for one brand’s rights,” read an amicus curiae brief from the trade association. “We are setting a precedent for the entire digital economy, ensuring that the trademarks which have become synonymous with trust and quality in the physical world carry the same weight in the digital one.”
Federal Jury Rules In Favor of Hermès
Hermès was handed a win last week when a federal jury in Manhattan found Rothschild guilty of cybersquatting, brand dilution, and violating the fashion house’s “Birkin” trademark. The ruling will require Rothschild to pay the company $133,000 as well as $23,000 for damages caused by cybersquatting.
A statement in response to: Hermès International, et al. v. Mason Rothschild. pic.twitter.com/pil6brfGTl
— MetaBirkins (@MetaBirkins) January 17, 2022
Rothschild has vowed to fight the verdict, however, with his lead counsel Rhett Millsap stating “this is not the end of this case.”
“I am not creating or selling fake Birkin bags,” Rothschild said in a statement. “I’ve made artworks that depict imaginary, fur-covered Birkin bags.”
The End Of MetaBirkins?
Rothschild had originally argued that his work was mere artistry in the tradition of portraying branded images, likening MetaBirkins to Andy Warhol’s celebrated Campbell’s soup cans.
The recent brief from the CDC retorts this argument, claiming that “Andy Warhol was not selling soup at a grocery store.”
The brief goes on to compare Hermès’ right to sell its own digital goods as comparable to NFTs by other brands, such as Tiffany & Co. or the Chicago Bulls. Additionally, the trade association argued that Hermès’ already established brand identity gave MetaBirkins its value.
“It is the identifying features attached to otherwise nameless and faceless lines of computer code which allow those digital goods to be bought and sold online in similar ways to how physical goods are bought and sold online,” the brief stated. “The fact that a company offers its goods in a digital space should not result in those products or that company receiving any less trademark protection than physical goods sold in the real world.”
As of the time of publication, it is currently unclear whether or not an appeal has been filed.