DISPUTE CONTINUES: The legal battle between Hermes International and the artist known as Mason Rothschild took another turn Friday, when the luxury house filed a preliminary motion for a permanent injunction in Manhattan federal court Friday to try to stop him from selling and promoting his “MetaBirkin” non-fungible tokens.
Hermès sued the 28-year-old artist, whose given name is Sonny Estival, for creating and selling 100 MetaBirkins — colorful faux-fur Birkin bag-inspired NFTs — in November 2021. The luxury brand contended the NFTs confused consumers, diluted the brand and impacted its in-the-works plans for NFTs. Rothschild and his legal team have insisted that the two-dimensional digital tokens were a commentary on fashion’s fur-free initiative, an experiment in replicating the luxury handbag’s perceived value and an act of artistic expression that is protected under the First Amendment. The artist, who is also cofounder of the progressive store, gallery and event space Terminal27 in Los Angeles, was compared to Pop Art artist Andy Warhol.
Last month a nine-person jury in Manhattan federal court found Rothschild liable of trademark infringement, brand dilution and cybersquatting. They also found that the First Amendment does not bar liability. In terms of damages, Hermès will be awarded $110,000 for trademark infringement and brand dilution, as well as $23,000 in statutory damages for cybersquatting.
Executives at Hermès did not respond to a request for comment Monday regarding the latest action. A spokesman for Rothschild issued an unsolicited statement Monday from one of his attorneys at Lex Lumina PLLC, Rhett O. Millsaps II, which read, “As plaintiffs, Hermes gets to file their argument first. This case is far from over. This latest filing is a gross overreach by Hermes and an attempt to punish Mr. Rothschild because they don’t like his art, but what’s new? Mr. Rothschild will be responding in the Court in due course.”
That reiterated what Millsaps vowed following last month’s decision that an appeal was being planned. He also said at that time that every legal avenue will be taken by Rothschild’s legal team. Asked whether there is a timeline as to when the appeal would be filed on behalf of Rothschild, his spokesperson said Monday, “not at this time.”
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