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Hermès’ and Mason Rothschild’s Legal Battle Over ‘MetaBirkins’ NFTs Continues

More than a year after Hermès International won its trademark infringement case against the artist who is known as “Mason Rothschild” for his “MetaBirkins” NFTs, the legal wrangling continues.

Hermès had sued the artist, whose given name is Sonny Estival, for creating and selling 100 MetaBirkins — colorful faux-fur Birkin bag-inspired non-fungible tokens — in November 2021. The luxury brand had successfully contended the NFTs confused consumers, diluted the brand and impacted its in-the-works plans for NFTs. Rothschild and his legal team had insisted that the two-dimensional digital tokens were a commentary on fashion’s fur-free initiative, an experiment in replicating the luxury handbag’s perceived value and an act of artistic expression that is protected under the First Amendment.

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Following last year’s unanimous decision by a nine-person jury, Justice Jed S. Rakoff issued a permanent injunction against Mason Rothschild from further infringing on Hermès’ trademarks. Now the U.S. District Court judge has barred the artist from showing the digital tokens in an exhibition that was planned for the Spiritmuseum in Stockholm. The Los Angeles-based Rothschild had filed a petition in court in January seeking clarification about whether that decision would prevent him from allowing Spritmuseum in Stockholm from including his work in an exhibition. The court order prohibiting the artist from using the MetaBirkins in the upcoming show was first reported by Artnet News.

Located in Stockholm on Djurgården island, the Spritmuseum bills itself as being “dedicated to Swedish drinking culture” and as “the permanent home to the internationally renowned Absolut Art Collection. The museum offers a wide range of pop-cultural, culinary and tasting experiences.”

The digital MetaBirkins were inspired by the luxury house’s famed “Birkin” handbag named for Jane Birkin. The Birkin was first introduced in 1984 after the late actress had suggested the need for such an oversize luxury handbag to an Hermès executive on an international flight. Last year’s trial offered a window into the luxury business, including that Hermès sells more than $100 million in Birkin bags each year, and had done so for the past decade.

Rakoff referred to Rothschild in an order as a “straightforward swindler, who tried to cloak his fraud by posing as an artist.” In response to the verdict and throughout the trial, Rothschild had said the First Amendment gives him the right to make and sell the Birkin-inspired art.

Regarding the Spritmuseum decision, a spokesperson for Hermès said Tuesday that the company had no comment at this time. One of the outside lawyers for Hermès, Gerald Ferguson of Baker Law, declined comment Tuesday and reiterated that Hermès would not comment regarding the recent court decision.

Mason Rothschild declined to comment through a spokesperson Monday. An attorney for the artist, Rhett Millsaps of Lex Lumina PLLC, said Monday that a motion for reconsideration will be filed with Rakoff and that that is expected to happen next week.

The point of dispute was that the Spritmuseum’s exhibition would promote the artist’s infringing MetaBirkins NFTs or potentially cause further confusion to consumers. During the evidentiary hearing earlier this month, there was testimony from contemporary art critic Blake Gopnik, who helped organize the exhibition, and the Spritmuseum’s Mia Sundberg, who is curator of the Absolut Art Collection.

Responding to a media request, Sundberg said Wednesday that the Spritmuseum would still like to feature Rothschild’s “MetaBirkins” on a computer screen, as part of the Gopnik-curated exhibition “Andy Warhol: A Portrait of Commerce,” when it bows in October.

Sundberg added, “We do not wish to cause further legal difficulties for Mason Rothschild. However, I am not sure if the American judge or indeed Mason Rothschild himself can forbid us to place a computer in an exhibition in Stockholm and show the images on the net, where they already exist for everyone to see.

The Spritmuseum has not yet decided whether it will include Mason Rothschild’s artwork. “They are not central to the exhibition, nor are they central to the section of younger artists,” Sundberg said.

Gopnik did not acknowledge a media request.

During last year’s trial, Gopnik had not been allowed to testify. Gopnik had written a report for Rothschild’s case explaining why MetaBirkins are art, and had been put forward as a witness in the case. Having written pieces for The Washington Post and The New York Times, among other media outlets, Gopnik’s portfolio includes a comprehensive biography of Andy Warhol, whose Campbell soup can silkscreen series was said to be in a similar vein to the MetaBirkins, according to Rothschild’s lawyers.

In the March 13 order issued by the court denying permission, Rakoff noted that in Estival’s opening letter motion regarding the instant dispute, “his counsel stated, without the slightest caveat or qualification, that ‘the exhibit text would…explain that Hermès sued and won a trial against Mr. Rothschild [Estival] for trademark infringement.’ The artworks will be accompanied by an explanatory text about the litigation brought by Hermès.’”

Rothschild, whose request for a new trial was denied last year, has an appeal pending in the Second Circuit Court in New York.

Editor’s Note: This article was updated on March 20 at 5:00 pm.

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