In the Headlines
January 29, 2023

Virtual Birkin Bags on Trial in Hermès Case Testing IP Rights

The Wall Street Journal

Intellectual Property attorney Thomas Brooke spoke with The Wall Street Journal about Hermès' fight against a self-described entrepreneur and artist who developed a non-fungible token (NFT) version of the Birkin handbag, an exclusive staple of the French luxury brand. Mason Rothschild created a series of 100 digital images he called MetaBirkins, depicting a fur-covered purse in the same shape and style as the Hermes luxury product, which he sold on virtual marketplaces. Hermès is seeking to stop Mr. Rothschild from using its brand, the destruction of the NFTs and his profits, plus other financial damages. Mr. Rothschild says his MetaBirkins are artwork protected by the First Amendment. Mr. Brooke and other legal analysts say this trial represents an important early test of how a company can exercise its trademark rights against virtual assets it didn't authorize.

The specter of the unregulated metaverse is top of mind for companies that worry their brands will be used — and abused — as virtual reality expands, said Mr. Brooke. The case "will give us more guideposts for what to do with NFTs," he continued. "With any new technology the courts are often having to apply existing law to figure out what works."

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