The luxury bag maker doesn't want the creator of the furry Birkin Bag NFTs, which the jury found to be knock-offs not art, to mint, airdrop or or even tweet about them during the appeal.
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Hermès International wants artist Mason Rothschild to give them every penny he made selling the MetaBirkin NFTs that a jury recently found had violated the luxury brand's trademarks.
But more than that, it wants him to stop selling them. For that, Hermès argued, it needs the project's smart contract.
Among the most coveted of status symbols, real-world Birkin handbags start at several thousand dollars and work their way up to six figures. The MetaBirkin NFTs were a play on those bags — they're covered in bright faux fur — that Rothschild said was protected artistic commentary.
Noting that Rothschild still "promotes the sale of MetaBirkins NFTs on the MetaBirkins website and on the MetaBirkins Instagram and Twitter accounts," Hermès pointed out that the artist has MetaBirkins set to collect a 7.5% resale royalty on the LooksRare marketplace.
To that end, it has asked the court to give it control of every social media account, website and ENS domain he created for the project. In addition, the luxury brand wants Rothschild to give them all of the remaining MetaBirkin NFTs he has, it said in a filing. And stop minting, distributing, selling, marketing, advertising, airdropping or circulating them.
More broadly, Hermès wants control of the smart contract that lets him set and collect those royalties — to say nothing of mint and sell new MetaBirkins, list them on marketplaces, and even enable their integration into metaverses.
Not Over Yet
Hermès said the damage to the brand was substantial, as it had its own plans for NFTs of its bags and other accessories. "If we want to bring our most iconic handbag in this digital world, there would always be a reference to this MetaBirkin," said the company's general counsel, Nicolas Martin. "We lost this opportunity for being first on the market, which I think is really something impactful."
The company also claimed that both Rothschild and his attorney "continue to promote MetaBirkins post-verdict" — although the examples they gave were comments about disagreeing with the verdict and appealing the decision, including social media posts of interviews with critics of the verdict.
In a widely distributed statement, Rothschild's lawyer, Rhett Millsaps said that the "case is far from over." He added:
"This latest filing is a gross overreach by Hermes and an attempt to punish Mr. Rothschild because they don't like his art, but what's new? Mr. Rothschild will be responding in the Court in due course."
