Заштита жигом заштићених ознака у метаверзуму - предмет Hermès International v. Mason Rothschild
The Protection of Trademarks in Metaverse - case Hermès International v. Mason Rothschild

Author(s): Jelena Ćeranić Perišić
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Metaverse; Trademark; Non-fungible tokens; Trademark infringement; MetaBirkin;
Summary/Abstract: Different forms of communication in the metaverse raised several legal issues related to intellectual property, primarily in the context of trademark use. The case that caused the most attention regarding the use of the trademark to tokenized goods in the metaverse concerned the trademark of the French manufacturer of the bags and fashion accessories – Hermès. The company Hermès owns the trademark Birkin for the leather women’s handbag, symbol of luxury and prestige. Artist Mason Rotschild used the MetaBirkin trademark for non-fungible tokens (NFT) representing virtual bags, very similar to Hermès Birkin bag. Rotschild’s artwork was sold for tens of thousands of US dollars. Afterwards he created a new collection of MetaBirkin NFTs. The company Hermès filed a lawsuit in New York court against artist Rotschild for producing NFT MetaBirkin, each of which was a digital image of Hermès Birkin bag as if it was made of fur. The key legal issue was whether NFTs that contained an unauthorized use of a protected trademark for physical goods can constitute a trademark infringement. In March 2023, New York court ruled that a collection of digital images of fur-covered handbags attached to an NFT called MetaBirkin was likely to confuse consumers with a luxury fashion brand, Hermès Birkin bag. The jurors also found that Rothschild's NFTs were not protected speech. For the first time, this ruling established the legal nature of NFTs, comparing them more to commodities, subject to strict trademark laws that prevent copycats, than to artworks that enjoy protection for appropriation.

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