A U.S. judge permanently banned digital artist Mason Rothschild from selling his ‘MetaBirkin’ NFTs, handing a win to Hermès:
in damages. This was significant because, as Rakoff noted in his opinion, if the jury had found even a modest semblance of artistic expression in Rothschild’s work, he would have been entitled to First Amendment protection. Instead, “Hermès proved that Rothschild intentionally misled consumers into believing that Hermès was backing its products,” Rakoff wrote. “In effect, the jury found that Rothschild was simply a swindler.
The latest decision was a response Hermès’s request in March to block Rothschild from promoting and profiting from his MetaBirkin NFTs, which Hermès claimed he had continued to do after February’s verdict. It did not, however, grant a request to transfer the smart contract from Rothschild to Hermès, which would have allowed the brand to alter the digital file to which the MetaBirkins NFTs are linked.
“This signals to companies without virtual goods or services that they too may also be able to assert their trademark rights in virtual worlds,” Neer McDonald told Artnet News. “This is consistent with trends we are seeing in the United States Patent and Trademark Office.”
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