Trademark infringement has extended to the metaverse, with luxury brand Hermès battling digital artist Mason Rothschild in court over the creation and sale of non-fungible tokens that depict images resembling its hard-to-get Birkin bags. A trial over the alleged infringement of Hermès’ intellectual property began in Manhattan federal court this week, with the multibillion-dollar corporation claiming the name of the NFTs – MetaBirkin – misled consumers into incorrectly believing they were affiliated with Hermès. “Hermès brought the lawsuit because they thought it infringed and thought people would wrongly think Hermès was involved,” Oren Warshavsky told the jury in his opening statement. The sticky situation is made stickier because the company apparently has plans to join the metaverse as well, Warshavsky revealed. It’s the first case involving trademark infringement to NFTs – digital assets that are bought and sold with blockchain technology – to go to trial. 7 handbags named after famous female icons, from Princess Diana to Selena Gomez Quentin Tarantino and Miramax LLC settled their dispute over whether the film director could sell NFTs depicting his screenplay for the award-winning film Pulp Fiction before their case made it to trial. The Hermès dispute also pits artists’ First Amendment rights against company intellectual property claims. Rothschild’s lawyer, Rhett Millsaps, told the jury that as long as the product is artistically relevant and doesn’t explicitly mislead consumers, then it’s protected under the First Amendment of the Constitution, guaranteeing freedom of expression. He compared Rothschild’s style to that of Andy Warhol, a leader in the US pop art movement who’s renowned for his portrayals of Campbell’s soup cans, Coca-Cola bottles and Brillo Soap Pads boxes. “Art doesn’t exist in a vacuum,” Millsaps told the jurors. “Context matters.” Who is Mason Rothschild? Mason Rothschild is a Los Angeles-based artist and entrepreneur. The artist took the stand on January 31, telling the jury he’s worked at various fashion stores including Christian Dior SE and Saint Laurent, and has done graphic design for local stores and individuals. In March 2021, he and his now-fiancé opened a retail concept store called Terminal 27 that was named by Vogue as one of the best fashion boutiques in the US. The dram meets digital art: limited-edition whiskies with an NFT chaser View this post on Instagram A post shared by @terminal27 “I’ve been in the art space for a while doing my own art and going to galleries,” Rothschild told jurors. “It’s always been a main staple of my life.” He said he respected Hermès, though “maybe a bit less after the lawsuit”. “I value fashion and art and I appreciate what they do,” he said. Though media outlets including the New York Post published that Hermès was behind the MetaBirkin NFT, Millsaps said Rothschild shut down that narrative and called up reporters to correct them. Most of Rothschild’s projects make some kind of social commentary, Millsaps said. The MetaBirkin NFT, he said, is about the luxury consumer culture , and whether people would ascribe the same value to an NFT as they do to the actual product. That’s unclear so far. Some of the NFTs, which Rothschild initially sold for US$450 each, have resold for tens of thousands of dollars. The Baby Birkin NFT sold at an auction in May 2021 for US$23,500. That’s more than the US$8,500 Hermès Halzan 25 sells for on Madison Avenue Couture’s website, but still far less than the Hermès Birkin 25 Himalaya Niloticus Crocodile Diamond Encrusted Hardware – which is listed at US$500,000. The 25cm Hermès bags are also known as Baby Birkins. So just how similar is the NFT to the real thing? The Rothschild NFTs are designed with the same shape as the actual Hermès bag, but are covered with fur instead of leather and all have some type of visual or pattern on them. The Baby Birkin NFT has a moving picture of a fetus inside the bag. Rothschild also proposed a plan on social media to recreate the designer bag’s famed horse keychain – which the company used as evidence to demonstrate the violation to Hermès’ trademark of not just the Birkin name but its configuration, even though the plan was never implemented. The Kardashian-Jenner clan’s most expensive Hermès handbags, ranked The NFTs hurt Hermès’ ability to bring its own digital products into the metaverse, Nicolas Martin, group general counsel at Hermès who specialises in intellectual property, told the jury. “If we want to bring our most iconic handbag to the digital market, it’ll always be compared to MetaBirkin,” he said. “We lost the opportunity of being first on the market, which is really impactful for Hermès.” It’s not the first time Rothschild’s creations have landed him in trouble … He had previously printed university logos on apparel and received a cease-and-desist order from one of the schools, Warshavsky said. Kevin Mentzer, an expert witness testifying for Hermès, told the jury that the research he conducted showed Rothschild made about 55.2 ethereum tokens, worth about US$87,700. Robert Chavez, the president and chief executive officer of Hermès in Paris, was the first witness in the trial, explaining to the jury in video testimony the prestige of the bag , each of which is crafted by one person and takes 18 to 24 hours to make. Sales of Hermès bags were about US$100 million a year over the last decade, Chavez said. He told the jury that he hasn’t heard of a client asking for a bag completely made of fur – like the design in Rothschild’s NFT – nor was he aware of a loss in revenue as a result of MetaBirkin. In fact, he said the original bag is still in high demand and has a lengthy waiting list. “ The demand far exceeds our ability to supply,” he said. Want more stories like this? Follow STYLE on Facebook , Instagram , YouTube and Twitter .