This story was updated on February 10, 2022
No one is surprised that Hermès has hit the creator of the Metabirkin NFTs with a cease and desist – it was only a matter of time. Now, the creator has responded with a motion to dismiss the complaint.
"Each of the 100 works in Rothschild’s “MetaBirkins” series is a unique, fanciful interpretation of a Birkin bag. Rothschild’s art is made with pixels, but the bags are depicted as fur covered. This aspect of Rothschild’s MetaBirkins art comments on the animal cruelty inherent in Hermès’ manufacture of its ultra-expensive leather handbags," the motion preliminary statement reads, adding, "These images, and the NFTs that authenticate them, are not handbags; they carry nothing but meaning. Hermès asks this Court to suppress Rothschild’s art and to restrain his protected speech in the service of protecting Hermès’ commercial interest in its trademarks."
It remains to be seen what the response will be, and weather the lawsuit will be dismissed.
For those of you who missed the Metabirkin, the NFT collection exploded after they were originally released. The fuzzy, digital iterations of the luxury silhouette spread through the internet like wildfire. Initially, there were a total of 100 designs available to purchase on OpenSea.
Created by artist Mason Rothchild, the Metabirkin Instagram account has grown to an impressive 14.2K followers.
Rothchild took to his Instagram to address the cease and desist served by Hermès, writing that "the first amendment gives me every right to create art based on interpretations of the world around me."
"There is a moving tide of innovation and evolution, and it is your role as a fashion powerhouse to amplify young creatives and artists rather than stomp them out. Your actions can help determine the future of art in the Metaverse."
In the virtual world, it is difficult to determine right and wrong. Many have argued that Hermés is just angry they didn't think of it first, whereas others think that using the Birkin silhouette is boring and lazy.
According to The Fashion Law, Hermès might still have the upper hand, as the brand does not yet exist in the Metaverse, which means that as a trademark holder they could potentially shut down unauthorized use of its trademarks when used for competition. "After all, trademark holders can legally prevent others from using their mark or a mark that is similar to theirs on “related goods or services,” the site explains.
The Metaverse is currently projected to become a $1 trillion dollar industry, so it might be in the brand's best interest to come to an agreement with Rothchild or team up with another artist, rather than shutting down the project entirely. One thing is for sure, and that is that luxury brands will need to keep an eye on the digital sphere to grow.
Hermès has yet to respond to the latest developments.