Hermes Lawsuit to Continue; Motion to Dismiss Denied

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  • In January, Herms sued Rothschild alleging he infringed the trademarks of its famous Birkin luxury handbag by creating and selling MetaBirkins NFTs.
  • The NFTs represent digital images of the Birkin handbags, but covered in fur instead of leather.
  • Last week, oral arguments took place to determine whether or not the ongoing case against Rothschild should be dismissed.
  • By and through counsel and Harvard Law School Professor Rebecca Tushnet, Rothschild argues MetaBirkins falls under first amendment protections, while Hermes says that because of how Rothschild has used the MetaBirkins name, it has created a likelihood of consumer confusion as between MetaBirkins NFTs and the Herms brand.
  • Specifically, Tushner says that the MetaBirkins NFTs are protected under the Second Circuits 1989 Rogers v. Grimaldi test, which established the explicitly misleads standard.
  • Tushner argues that what Rothschild has done with the MetaBirkins NFTs differs from ordinary consumer products, as they are considered an expressive work.
  • During oral arguments, she stated that by not dismissing this case, this would have a chilling effect on artists who want to depict famous brands, but dont have the money for a successful legal defense, citing three other trademark cases that were decided on a motion to dismiss that also applied the Rogers test.

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