Hermès has ordered the artist responsible for the MetaBirkin, Mason Rothschild, to remove his creation from NFT marketplace OpenSea.
The MetaBirkin is a digital homage to the famous Hermès bag, which are often sold for hundreds of thousands of pounds online.
However, the NFT creation, which are simulated with faux fur and a range of colours and graphics are not created by Hermès and are not authentic, prompting the luxury brand to issue a cease and desist letter to Rothschild.
The bags were trading for over $1 million on peer-to-peer marketplace OpenSea.
However, the bags were removed earlier this month after Hermès said they infringed company trademarks, as the designs were neither licensed nor endorsed.
Rothschild however hit back at the trademark claim on Instagram by saying: “The First Amendment gives me every right to create art based on my interpretations of the world around me.”
He said that he believes that his designs are “a commentary on fashion’s history of cruelty to animals, and its current embrace of alternative fur-free and textile initiatives.”
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According to online learning source P-Education, Hermès “retains strong rights to the Birkin bag’s name and composition for use on leather goods and other related products, there is an argument that these rights do not necessarily apply to virtual handbags – or the symbol associated with an image of a handbag (ie NFT).
“Assuming that Hermès can successfully demonstrate that its rights extend into the metaverse (perhaps by relying on rights to the Birkin bag and Birkin’s name in the digital/e-commerce space and/or as part of the scaling area argument), in order to establish a case of infringement, it must show that consumers are likely to be confused about the source of the MetaBirkins and/or their association, association, or association with NFTs.”
Rothschild told Yahoo Finance: “I wanted to see as an experiment if I could create that same kind of illusion that it has in real life as a digital commodity.
“And I feel like I’ve kind of accomplished that with the statistics that we kind of have today, is being able to put together this kind of digital commodity everybody loves, bringing it into the digital world with this introduction of the metaverse and seeing how it works out and how it plays in the hands of like the community, selling it at that, keeping that scarcity of 100 bags total and seeing what the community does with it.”