Hermès’ Birkin not drowned by Campbell’s soup: the MetaBirkin decision

The jury determined that Rothschild’s “MetaBirkin”, the term coined for his NFTs comprising images of reworked Hermès’ Birkin bags, infringed Hermès’ trade mark for “Birkin”. Hermès was awarded $133,000 in damages.

Whilst the jury had to grapple with complex questions of free speech and the boundaries of art, the real overarching question was simple: was Rothschild unfairly using the Birkin mark and the renown and reputation it enjoys, to generate interest in his NFTs? The jury agreed that he was.

Whilst Rothschild sought to draw parallels with Warhol’s Campbell soup cans by arguing that the MetaBirkin is “artistic expression” (a consideration under US law), the jury were clearly not persuaded by this argument. On day 1 of the trial the court dismissed Rothschild’s key expert witness, an art critic specialising in Andy Warhol, who was due to give evidence in support of this contention, so their conclusion was not surprising in this regard. The infringement finding, and the defendant's reaction on Twitter suggests that Metabirkins are not considered an artistic expression, presumably in contrast to Warhol's Campbell's Soup Cans painting. Whether that conclusion extends to NFTs generally and, if not, where the distinction is drawn, is likely to be the most far reaching aspect of this dispute.

We will continue to consider this case in more detail in the coming days and weeks.