METABIRKINS: The Hermès v. Rothschild Case Lily Bell January 25, 2022 MESSFashion Hermès is denouncing the project of digital artist Mason Rothschild, claiming that it infringes the House’s intellectual property rights. Mason Rothschild has designed and monetised “MetaBirkins”, bags inspired by Hermès famous Birkin, into NFT digital bags. In the last few years, with the rise of cryptocurrency has come the rise in NFTs as well. NFTs, or non-fungible tokens, are popular digital tokens that represent real-life objects. People bid and buy them online, often through the use of cryptocurrency. The Hermès v. Rothschild case is the first major example of a big luxury brand taking action against the unauthorised use of its trademarks in the virtual world. The unfolding lawsuit raises many legal as well as cultural questions. The Baby Birkin NFT by Mason Rothschild and Eric Ramirez The Birkin, by French luxury goods maker Hermès, is considered to be the ‘holy grail of handbags’ and some say a better investment than gold. Birkins are particularly coveted on the resale market due to their limited production and Hermès has placed a limit on how many Birkins a client can purchase per year. They embody absolute luxury and are the most exclusive and sought-after of bags today. This is why headlines like; ‘The Baby Birkin NFT Just Sold For More Than The Real Thing‘ are shocking. The first piece of Hermès-inspired digital art produced by Rothschild was the “Baby Birkin” NFT in collaboration with painter Eric Ramirez. The virtual bag is transparent, featuring a 3D animation of a 40 week old baby moving inside it, accompanied by a “space-themed” soundtrack and background. The digital piece of art was sold at online retailer Basic.Spaces’ auction for the equivalent of $23,500 to Aki Hayashi, who bid four times for it. For comparison, the small Birkins retail for at least $9,400 USD and the bigger sizes in conventional fabrication go for under $15,000. The Baby Birkin surpasses those figures by far, though even that imposing sum pales in comparison to rare Hermès bags. The most expensive Hèrmes Birkin, and bag in general, was the infamous and rare Diamond Himalaya, which sold at a real-life auction for a little over $400,000. The bag boasted crocodile skin, 18-karat white gold hardware, and a smattering of white diamonds. Jesse Lee, founder of Basic.Space, said to Vogue Business that creators Rothschild and Ramirez wanted to capture the cultural zeitgeist around the Birkin. “We wanted to take the cultural moment and replicate it in a digital form. It was a cultural commentary.” The creative NFT was intended to be a play on the handbag’s sought-after standing in pop culture, even making reference to the song Baby Birkin by rapper Gunna. However, since the release of the one-off Baby Birkin, Rothschild has launched his collection of over 100 unique Birkin-inspired NFTs at the 2021 Miami Art Basel celebrations, under the trademark ‘MetaBirkins’. The MetaBirkins are simulated with faux fur and an array of colours and graphics. Rothschild explained online that his digital art collection is to be appreciated as a commentary on fashion’s history of cruelty to animals, and its current embrace of alternative fur-free and textile initiatives. The MetaBirkins which have been described as a “weird mix of art and commerce” have been a huge success and touted online by the likes of rapper Future, one of seven celebrities to whom Rothschild gave a free digital bag to help promote them. The problem – What’s Legal and What’s Real? Despite the NFT borrowing the iconic Birkin name and style, Hermès had no affiliation with, and saw no revenue from, the sale of the Baby Birkin, or the 100+ “MetaBirkins” that swiftly followed. In a 47-page complaint, Hermès asserts that beginning on December 2, 2021, Rothschild has advertised his collection of NFTs, “using Hermès federally registered trademarks” – including its “globally recognized” BIRKIN word mark and trade dress – without its permission and in violation of its trademark rights. But to be clear, Hermès appears to distinguish between the 100 MetaBirkins NFTs and the “single” Baby Birkin NFT, from a commercial point of view, citing the “one-off” nature of the latter. Defending his art online, Rothschild has referred to decades of art history and fashion’s trajectory in recent years that are full of examples of creators recontextualising cultural symbols such as Andy Warhol with Campbell’s soup and the late Virgil Abloh putting artwork by Italian painters, namely Michelangelo Merisi da Caravaggio, on t-shirts and hoodies. “This case is worth keeping a close eye on, as it is one of the first that centres on fashion-related NFTs from a trademark infringement and dilution perspective. With this in mind, it will potentially serve as a roadmap for other big-name brands that are actively taking the temperature of the space,” states The Fashion Law. Moreover, the Hermès v. Rothschild case can be considered an example that encourages more luxury brands to embrace the opportunity of fashion in the Metaverse. We are moving towards the idea of wearable digital technology, which should become a brand extension as natural as any other physical item. Hermès, unlike other luxury fashion houses, is not currently a player in the digital game, raising the question; Should luxury fashion houses be going after digital artists or partnering with them? Pieces from Rothschilds ‘Metabirkin’ NFT collection Rules in the Metaverse are still very unclear. It’s an area the law is still working to clarify – legal and financial teams are working to learn about the Metaverse and potential issues that might arise from digital creativity and expression. The fashion world is currently at a critical junction in developing strategies that relate to wearable digital technology.