Judge Jed Rakoff of the U.S. District Court for the Southern District of New York on May 18, issued an order denying self-proclaimed artist Mason Rothschild’s motion to dismiss the French luxury brand Hermès International’s trademark infringement case, but set the stage for the litigation by finding the Rogers test applicable in determining infringement. Although the merits of Hermès’ trademark claims were not addressed in the court’s order, the ruling offers some insight as to how courts will treat trademark claims involving nonfungible tokens (NFTs).

The BIRKIN Battle: Protected Speech or Infringement?

The ongoing dispute between Rothschild and Hermès centers around Rothschild’s production, marketing and sales of his MetaBirkin NFTs, which are digital images of furry versions of Hermès’ iconic Birkin bag. Rothschild sold the MetaBirkins and other NFTs through social media and online storefronts under the “MetaBirkin” name. Hermès claims, among other things, that the MetaBirkin NFTs infringe and dilute its famous BIRKIN trademark.

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