The Chamber of Digital Commerce (CDC), a leading blockchain and digital asset trade association, has filed an amicus curiae brief in support of French luxury fashion house Hermès in the company’s ongoing legal battle over the “MetaBirkins” non-fungible tokens (NFTs). The case, which centers around artist Mason Rothschild’s creation of Birkin bag-inspired NFTs, could set a significant precedent for how trademarks are applied to digital assets in the Metaverse and beyond.
Hermès, the legendary designer of the iconic Birkin bag, has been embroiled in a contentious legal dispute with Rothschild, who goes by the pseudonym Sonny Estival. The luxury goods company sued the artist for creating “MetaBirkins” – NFTs depicting Birkin bags that Rothschild was able to sell for tens of thousands of dollars.
The CDC’s amicus curiae brief underscores the importance of this case in shaping the future of the digital economy. “As the Chamber of Digital Commerce stands with Hermès in this case, we are not just advocating for one brand’s rights,” the brief reads. “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.”
Last week, Hermès secured a significant victory when a federal jury in Manhattan found Rothschild guilty of cybersquatting, brand dilution, and violating the fashion house’s “Birkin” trademark. The ruling requires Rothschild to pay the company $133,000 and an additional $23,000 for damages caused by cybersquatting.
Despite the verdict, Rothschild has vowed to fight on, with his lead counsel Rhett Millsap stating, “This is not the end of this case.” Rothschild maintains that his work is a form of artistic expression, akin to Andy Warhol’s celebrated depictions of branded images like Campbell’s soup cans.
The CDC’s brief directly refutes this argument, stating, “Andy Warhol was not selling soup at a grocery store.” The trade association goes on to compare Hermès’ right to sell its digital goods, such as NFTs, to the digital offerings of other brands like Tiffany & Co. or the Chicago Bulls. The brief argues that Hermès’ established brand identity is what gives MetaBirkins its value and that offering products in a digital space should not result in less trademark protection than physical goods sold in the real world.
As the legal battle continues, it remains unclear whether Rothschild has filed an appeal. However, the CDC’s involvement and the potential implications for the broader digital economy have elevated the importance of this case to new heights.
