One of Rothschild’s lawyers, Rhett Millsaps II, called it a “great day for big brands” and a “terrible day for artists and the First Amendment.” “Hermès is a house of creation, craftsmanship and authenticity which has supported artists and freedom of expression since its founding,” it said. In a statement after the verdict, Hermès said it was compelled to act to protect consumers and the integrity of its brand. But the jury determined that MetaBirkins were more similar to commodities, which are subject to strict trademark laws that prevent copycats, than to artworks where appropriation is protected. Rothschild’s defeat was a major blow for the NFT market, which has often described itself as part of the creator economy. The jurors also found that his NFTs were not protected speech. On Wednesday, a nine-person federal jury in Manhattan determined that Rothschild had infringed on the company’s trademark rights and awarded Hermès $133,000 in total damages. In some of the first litigation to scrutinize the nature of digital assets sold on the blockchain, up for debate was whether NFTs, or nonfungible tokens, are strictly commodities or art shielded by the First Amendment. The case’s ramifications extended far beyond Hermès. Hermès swiftly sued the artist, Mason Rothschild, over the NFT project he called “MetaBirkins,” arguing that the company’s trademark was being diluted and that potential consumers might be fooled into buying the unaffiliated virtual goods. Others stamped with van Gogh’s “Starry Night” or populated by smiley emojis. One sporting the Grinch’s shaggy green fur. A Birkin with mammoth tusks affixed to it. Perturbed when an artist made a digital version of its coveted Birkin handbag with a reproduction of a mature fetus inside it, the luxury fashion brand Hermès watched in shock as other iterations popped up online.
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