This year, major corporations such as Nike, Adidas, Louis Vuitton, and Burberry invested into the NFT space, and it would be no surprise if their peers were to follow. Individual artists, like Mason Rothschild, have also begun to use NFTs as a new medium for their expressive works. Rothschild created “MetaBirkins,” an NFT project of digital art almost identical to the Birkin bag, the highly popular handbag designed by world-famous luxury brand Hermès. MetaBirkins were wildly popular among the NFT community, surpassing $1.1 million in sales and with the most expensive sale at $45,100. Hermès soon after sent Rothschild a cease-and-desist letter for trademark infringement, to which Rothschild claimed fair use and First Amendment defenses. Hermès then filed suit. Fortunately for those of us speculating on the legal treatment applicable to NFTs, Hermès’s recently filed complaint in the Southern District of New York presents a federal court the opportunity to clear up some intellectual property-related uncertainties.
Hermès’s highly desirable Birkin bag has been gaining world-wide recognition since its release over 35 years ago. Indeed, Rothschild even admitted that “[t]here’s nothing more iconic than the Hermès Birkin bag.” Hermès alleges that Rothschild began the MetaBirkins project to take advantage of the high demand for Birkin bags. Rothschild began to advertise his project on Discord, Twitter, Instagram, and even the MetaBirkins website, later selling the NFTs on marketplaces such as Opensea, Rarible, LooksRare, and Zora. Given MetaBirkin’s popularity, Hermès is understandably worried that MetaBirkins “is likely to cause confusion and mistake in the minds of the purchasing in public, and . . . falsely create[s] the impression that the goods sold” by Rothschild are Hermès-approved. Hermès’s causes of action include trademark infringement, false representation, trademark dilution, and cybersquatting.
Rothschild has refused to stand down. He posted a letter on Instagram in response to Hermès’s cease-and-desist letter, stating, “[w]hile I am sorry if you were insulted by my art, as an artist, I will not apologize for creating it.” Rothschild believes that the First Amendment gives him every right to engage in the MetaBirkins project, calling it “a playful abstraction” meant to act as social commentary on Hermès’s history of animal cruelty. He compared MetaBirkins to other instances of artists creating works relying on famous brand names, such as Andy Warhol’s Campbell Chicken Noodle Soup art.
Legal commentators aren’t sure that Rothschild’s arguments hold water. Rothschild is not only acting as an artist; he is, quite aggressively, marketing and selling these Birkin bag-replica NFTs. Professor Susan Scafidi of Fordham Law School explains that “[t]he more commercial [art] gets, the less artistic it gets.” NFT litigation has just begun, and the outcome of cases like Hermes Int’l et al v. Rothschild will set new, much needed precedent at the intersection of digital art and intellectual property rights. We will be watching closely.
 Samantha Handler, Hermès NFT Trademark Suit Has ‘All the Digital Marbles at Stake’, Bloomberg Law, https://news.bloomberglaw.com/ip-law/hermes-nft-trademark-suit-has-all-the-digital-marbles-at-stake.
 Compl. at 27, Hermes Int’l et al v. Rothschild (S.D.N.Y. 2022).
 Mandour & Associates, https://www.mandourlaw.com/blog/nft-trademark-lawsuit-hermes-birkin-minibirkin/.
 Compl. at 8.
 Id. at 32.
 Id. at 13.
 Id. at 16.
 Id. at 17.
 Id. at 34.
 See generally, compl.
 MetaBurkins (@metabirkins), Instagram, https://www.instagram.com/p/CXy5GdHPS-i/.
 MetaBurkins (@metabirkins), Instagram, https://www.instagram.com/p/CY1qlMppbex/.
 Handler, supra note 1.