Law12 Nov 2026
Case law › United States
MetaBirkins
S.D.N.Y. (jury), 8 February 2023, No. 22-cv-384
Trademark rights in a physical product can extend to NFTs depicting that product in a virtual environment.
- Court
- S.D.N.Y. (jury)
- Date
- 8 February 2023
- Reference
- No. 22-cv-384
- Parties
- Hermès International e.a. v. Mason Rothschild
Key takeaways
Mason Rothschild had sold 100 NFTs depicting faux-fur Birkin bags under the name MetaBirkins, for more than a million dollars. Hermès sued him in New York. On 8 February 2023, a jury found him liable for trademark infringement, dilution and cybersquatting, and awarded $133,000 in damages. The artist's First Amendment defence was rejected, the jury finding that he had intentionally misled the public.
On 23 June 2023, the judge granted a permanent injunction. Rothschild appealed to the Second Circuit, which heard the parties on 23 October 2024. The case is the first major illustration of trademark rights carrying over from the physical world to the virtual one, under US law.
The heart of the debate was the Rogers test, which in US law protects the use of a trade mark in an artistic work unless it is explicitly misleading. The judge accepted that NFTs could be artistic expression, but the jury found that the artist had sought to mislead the public. A few months later, the Supreme Court further narrowed the test in Jack Daniel's, setting it aside where another's mark is itself used as a source identifier.
To our knowledge, the court of appeals has not yet handed down its decision. In Europe, the question arises differently: virtual items are classed as digital goods, and a mark registered for bags is not automatically protected for their virtual equivalents, unless its reputation is shown.
