In the article “MetaBirkins Update: Is It Art or a Commercial Product?” published in The Recorder, attorneys Jonathan Hyman and Eric Blosser offer a comprehensive overview of the trademark issues at play in the U.S. Court of Appeals for the Second Circuit’s impending decision in Hermès International v. Rothschild.
Artist Mason Rothschild initiated the appeal after a jury in the Southern District of New York found him guilty of trademark infringement and dilution for depicting the iconic Hermès Birkin bag on a series of non-fungible tokens (NFTs) called ‘MetaBirkins’.
According to Hyman and Blosser, the Second Circuit’s decision in the appeal may address two important issues related to trademark infringement in the arts: the scope of the “explicitly misleading” prong established in the Second Circuit case Rogers v. Grimaldi and the impact of the Supreme Court’s 2023 Jack Daniel’s v. VIP Products decision on the threshold applicability of Rogers to the case.
The authors analyze the arguments employed by counsel for Rothschild and Hermès throughout the appeals process that sought to address the question of whether Rotshchild’s NFTs constituted art or a commercial product. They also illustrate how the case could have implications for the applicability of the Rogers test and Jack Daniel’s moving forward.
Regardless of which party the court decides for, Hyman and Blosser maintain, the decision “should be of great interest to artists, especially NFT and digital artists, and brand owners.”
“A decision for Rothschild would undoubtedly open the door for artists seeking to similarly utilize famous fashion icons and brands in the virtual world,” they add. “But it remains to be seen whether a decision for Hermès would discourage digital artists.”
Read the full article here.
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