Hermès calls for removal of virtual MetaBirkin bags from NFT platforms

Hermès has sent a cease and desist letter to artist Mason Rothschild, the creator of the MetaBirkin. The digital and virtual Birkin is an homage to Hermès’ famous bag, where Rothschild created over 100 individual Birkin-inspired NFTs simulated with faux fur and array of colours and graphics. Note the bags are not created by Hermès, nor are they real.

Virtual bags trading for over 1 million dollars

The bags were for sale on OpenSea, a peer-to-peer marketplace for NFTs, with a trading value of 1.1 million dollars, but were removed earlier this month after Hermès possible said they infringed its trademarks, as the designs were neither licensed nor endorsed.

Rothschild, in an open letter published on his Instagram feed, said the MetaBirkins NFTs are protected from the luxury brand’s trademark claims. “The First Amendment gives me every right to create art based on my interpretations of the world around me.” Rothschild further believes his designs are “a commentary on fashion’s history of cruelty to animals, and its current embrace of alternative fur-free and textile initiatives.”

Should fashion brands own the rights to physical designs which have been translated to the virtual metaverse?

According to The Fashion Law, a media and information company that provides insights for business and legal professionals in the fashion industry, "Hermès retains strong rights to the Birkin bag’s name and composition for use on leather goods and other related products," but "there is an argument that these rights do not necessarily apply to virtual handbags – or the symbol associated with an image of a handbag (ie NFT). Assuming that Hermès can successfully demonstrate that its rights extend into the metaverse (perhaps by relying on rights to the Birkin bag and Birkin’s name in the digital/e-commerce space and/or as part of the scaling area argument), in order to establish a case of infringement, it must show that consumers are likely to be confused about the source of the MetaBirkins and/or their association, association, or association with NFTs.”

In an interview with Yahoo Finance Rothschild said there is no bag more iconic than the Hermès Birkin. “I wanted to see as an experiment if I could create that same kind of illusion that it has in real life as a digital commodity. And I feel like I’ve kind of accomplished that with the statistics that we kind of have today, is being able to put together this kind of digital commodity everybody loves, bringing it into the digital world with this introduction of the metaverse and seeing how it works out and how it plays in the hands of like the community, selling it at that, keeping that scarcity of 100 bags total and seeing what the community does with it.”

Article source: The Fashion Law