A year ago, when cryptocurrencies were hot, Sam Bankman-Fried was considered “visionary” and “brilliant,” and NFTs would be bigger than artwork. Yeah, ok.

What a difference 365 days make. The wild west spirit of nonfungible tokens and the people creating them no longer exists. The guard rails are up, and one artist found out you can’t just steal a trademarked item and run with it. 

In one of the first intellectual-property trials regarding NFTs, a jury in New York ruled that artist Mason Rothchild’s “MetaBerkins” were likely to confuse consumers.  He had created NFTs of the popular and ultra-exclusive and pricey Hermes Berkin bags.

Hermes sued Rothschild, and the jury awarded the French fashion house $133,000 in damages for trademark infringement, dilution, and cybersquatting. 

The artist was not happy. His lawyer called the ruling a “terrible day for artists and the First Amendment.” An especially bad day for his client, I would say. 

The spotlight was on this case — to see how courts would apply trademark law to NFTs. 

The Birkin handbag business prints money for Hermes.  There is over $1 billion worth of the bags on the arms of stylish Americans, and Hermes has sold over $100 million worth in the past ten years in the States. 

Rothschild had created 100 FNTs associated with Birkin bag images colored in fur. 

Hermes referred to the artist as a “digital speculator” and said NFTs, in general, are a “get-rich-quick scheme.” Rothschild sold over $1 million worth of NFTs at Art Basel last year. 

Oh, by the way, Hermes has plans for their own NFTs.

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