Trademark Infringement Liability for NFT Sales
A jury awarded Hermès $133,000 in damages after finding that defendant Mason Rothschild's "MetaBirkins" project—a collection of 100 digital image NFTs of Hermès handbags covered in colorful fur—infringed and diluted the mark to Hermès's Birkin handbags, and that Rothschild was liable for cybersquatting with respect to his "MetaBirkins" website.
March 20, 2023 at 10:35 AM
6 minute read
NFTs on screen. A non-fungible token (NFT) is a unique digital asset that represents ownership of real-world items like art, video clips, music, and more. Credit:Rokas Tenys/Shutterstock.com On Feb. 14, U.S. District Judge Jed S. Rakoff of the Southern District of New York entered judgment in Hermès International v. Rothschild, 1:22-cv-00384-JSR (S.D.N.Y.), the first jury trial between a trademark owner and a creator of digital art nonfungible tokens (NFTs) under the Lanham Act, 15 U.S.C. §§ 1051 et seq. The jury awarded Hermès $133,000 in damages after finding that defendant Mason Rothschild's "MetaBirkins" project—a collection of 100 digital image NFTs of Hermès handbags covered in colorful fur—infringed and diluted the mark to Hermès' Birkin handbags, and that Rothschild was liable for cybersquatting with respect to his "MetaBirkins" website.
Case Background
Plaintiff Hermès is a luxury fashion brand known for, among other things, its Birkin handbags. Since first selling the bags in 1986, Hermès has sold over $1 billion worth of Birkin bags in the United States. See Hermès International v. Rothschild, 2023 WL 1458126, at *1 (S.D.N.Y. Feb. 2, 2023). Hermès owns the trademark for the word "Birkin."
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