In an effort to raise awareness of cruelty-free luxury goods, artist Mason Rothschild has created a limited number of non-fungible tokens (‘NFT’) of the iconic Hermès Birkin bag. However, these bags are redesigned as virtual furry, cruelty-free alternatives. Hermès declares that no permission has been sought to use the trademark and that Rothschild infringes the Hermès trademark.
Rothschild has previously caused problems with the giant luxury fashion house, with the creation of the “Baby Birkin” NFT in May 2021. The Baby Birkin NFT is described as “3D max animation… with a soundtrack from the era spatial .wav file, amplifying this illustration of pregnancy into an enigmatic creation”. This sold for nearly $24,000 worth of cryptocurrency on the blockchain. At the time, Hermès claimed they believed their trademark had been infringed and that they had no affiliation with the Baby Birkin NFT.
Rothschild’s latest creation targets the use of animal products in the fashion industry in general. However, he chose the iconic Birkin to be the subject of his NFT. The limited-edition NFTs sold on the OpenSea online marketplace for 200 ethereum, or around $700,000.
In response, Hermès stated that “Hermès did not authorize or consent to the marketing or creation of our Birkin bag by Mason Rothschild in the metaverse”, and that “these NFTs infringe the intellectual property and trademark rights of ‘Hermès and are an example of fake Hermès products in the metaverse’.
What does it mean?
Unauthorized use of trademarks in NFTs poses many problems for brands seeking to protect their intellectual property. Here are some issues to consider:
- the fact that often the value of the NFT comes from the inclusion of the brand or trademark, rather than the NFT itself. How do we value NFTs?
- how brands can keep up with this ever-evolving trend. Should they join the market and take control of the use of their brand by creating and selling their own NFTs (like Gucci) or do they pursue an aggressive policy of monitoring and enforcement?
- the risk of producing false copies of NFTs. Rothschild said he has seen unauthorized replicas of his MetaBirkin NFT sold for prices similar to the originals he released. He himself admitted that the blockchain was “relentless” and that there was little recourse for consumers who bought counterfeits.
Brands should consider how they can capitalize on the growing NFT market and how to protect their intellectual property. The law around this issue is nascent and there are few precedents to follow, so it is up to brands to develop the best strategy to protect themselves in the digital age.