NFTs, digital assets with unique identifying codes, frequently take the form of artwork and have exploded in popularity and price in recent years.[3]<\/a> Rothschild created 100 MetaBirkin NFTs as a \u201ccommentary on the way that society places artistic value on status symbols and high valued goods\u201d and sold them at Miami\u2019s Art Basel fair in 2021.[4]<\/a> During trial, an expert estimated that Rothschild made $87,700 worth of Ethereum from his sales of MetaBirkin NFTs.[5]<\/a><\/p>\n Rothschild argued that the First Amendment protected his NFTs, in the same way it protected Andy Warhol\u2019s Campbell\u2019s soup can prints.[6]<\/a> His legal team also relied upon the \u201cRogers\u201d test, first established in Rogers v. Grimaldi<\/em>.[7]<\/a> In Rogers, the Second Circuit held that \u201cartistic works\u201d are free from trademark restrictions unless \u201cthe public interest in avoiding consumer confusion outweighs the public interest in free expression.\u201d[8]<\/a> The test stems from the confusion standard set forth in the language of the Lanham Act.[9]<\/a><\/p>\n Herm\u00e8s contended that consumer confusion was present, as \u201csome media outlets had incorrectly identified the MetaBirkins as being a project endorsed by Herm\u00e8s.\u201d[10]<\/a> The design house also argued that Rothschild initiated consumer confusion by \u201ccreating domain names and social media handles bearing the Birkin moniker.\u201d[11]<\/a> Rothschild rebutted \u201cthat the fact that he markets and sells his art doesn\u2019t mean that it is no longer art.\u201d[12]<\/a><\/p>\n The commercial element of Rothchild\u2019s NFTs is significant as well. NFTs \u201care often traded on digital markets,\u201d which \u201cmay create the perception that [Rothschild] is selling digital assets \u2018that just happen to have his art attached to [them].\u2019\u201d[13]<\/a> However, art\u2019s commercial nature can be difficult to pin down, as \u201cphysical artwork is also traded on a market.\u201d[14]<\/a><\/p>\n While Herm\u00e8s has not yet attempted to enter the NFT market, the firm\u2019s general counsel, Nicolas Martin, feels that any possible future attempts to do so will be hampered by Rothschild\u2019s works, \u201cas there will always be a reference to the MetaBirkins.\u201d[15]<\/a> In fact, Herm\u00e8s mentioned in a court filing that it \u201chas its own plans for NFTs.\u201d[16]<\/a> As NFT popularity expands, Martin\u2019s contention is not as far-fetched as it may appear. In recent years, many brands, including Louis Vuitton, Nike, Ray-Ban, and Lamborghini, have launched NFT offerings of their own.[17]<\/a><\/p>\n In March, The Supreme Court will hear argument in Jack Daniel\u2019s Properties, Inc v. VIP Products LLC[18]<\/strong><\/a><\/em>, a case which \u201cwill defined the boundaries of the Rogers test.\u201d[19]<\/a> The outcome of the case \u201cwill play a key role in any future appeals and new NFT cases.\u201d[20]<\/a><\/p>\n While Rothschild\u2019s team contended that Herm\u00e8s \u201cwas improperly going after a small, independent artist with humble beginnings,\u201d the design house raises legitimate concerns about the impact that MetaBirkin NFTs have on the security of Herm\u00e8s\u2019 intellectual property.[21]<\/a> Regardless of one\u2019s feelings about the jury\u2019s decision here, clearly the relationship between art and trademark law is evolving, and will continue to develop, in the digital age.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n [1]<\/a> Blake Brittain, Hermes wins U.S. trademark trial over \u2018MetaBirkin\u2019 NFTs<\/em>, Reuters (Feb. 8, 2023, 2:15 PM), https:\/\/www.reuters.com\/legal\/hermes-wins-us-trademark-trial-over-metabirkin-nfts-defendants-lawyer-2023-02-08\/.<\/p>\n [2]<\/a> Isaiah Poritz & Hadriana Lowenkron, Herm\u00e8s Defeats MetaBirkins in the First NFT Trademark Trial (1)<\/em>, Bloomberg L. (Feb. 8, 2023, 1:42 PM), https:\/\/news.bloomberglaw.com\/ip-law\/hermes-gets-win-over-metabirkins-in-first-nft-trademark-trial.<\/p>\n [3]<\/a> Robyn Conti & John Schmidt, What Is An NFT? Non-Fungible Tokens Explained<\/em>, Forbes (Apr. 8, 2022, 8:36 AM), https:\/\/www.forbes.com\/advisor\/investing\/cryptocurrency\/nft-non-fungible-token\/.<\/p>\n [4]<\/a> Isaiah Poritz, First NFT Trademark Pits Herm\u00e8s Against MetaBirkin Artist<\/em>, Bloomberg L. (Jan. 27, 2023, 4:32 PM), https:\/\/news.bloomberglaw.com\/ip-law\/first-nft-trademark-trial-pits-hermes-against-metabirkin-artist.<\/p>\n [5]<\/a> Poritz & Lowenkron, supra<\/em> note 2.<\/p>\n [6]<\/a> Id.<\/em><\/p>\n [7]<\/a> Id.<\/em><\/p>\n [8]<\/a> Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989).<\/p>\n [9]<\/a> 15 U.S.C. \u00a7 1125.<\/p>\n [10]<\/a> Poritz & Lowenkron, supra<\/em> note 2.<\/p>\n [11]<\/a> Poritz, supra<\/em> note 4.<\/p>\n [12]<\/a> Id.<\/em><\/p>\n [13]<\/a> Id.<\/em><\/p>\n [14]<\/a> Id.<\/em><\/p>\n [15]<\/a> Poritz & Lowenkron, supra<\/em> note 2.<\/p>\n [16]<\/a> Brittain, supra<\/em> note 1.<\/p>\n [17]<\/a> Vanya Gautam, 10 Big Brands That Have Dipped Their Toes Into The NFT World<\/em>, India Times (Feb. 2, 2022, 12:48 PM), https:\/\/www.indiatimes.com\/worth\/investment\/brands-that-have-entered-nft-world-560907.html.<\/p>\n [18]<\/a> Jack Daniel\u2019s Properties, Inc. v. VIP Products LLC<\/em>, SCOTUSblog, https:\/\/www.scotusblog.com\/case-files\/cases\/jack-daniels-properties-inc-v-vip-products-llc-2\/ (last visited Feb. 11, 2023).<\/p>\n [19]<\/a> Poritz, supra<\/em> note 4.<\/p>\n
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