📖
Web3 Encyclopedia
  • Welcome aboard!
  • Source
  • 😀Evolution from Web 1.0 to Web 3.0
    • Web 1.0 Web 2.0 Web 3.0
    • Key Features
    • Current Limitations
    • Future of Web 3.0
    • Learn: What Is Web3?
    • Learn: Will Every Brand Have a Web3 Strategy?
    • Learn: Big Ideas in 2023
    • Learn: The Web3 Paradox: Why Scaling Usage Alone Won't Lead to Mass Adoption?
    • Learn: Is Web3 A Marketing Buzz or Tech Revolution?
    • Learn: What is the relationship between blockchain and Web3?
    • Learn:Empowering Women in Web 3.0: The Role and Contributions of Women in Blockchain, DeFi, and dApp
    • Learn: Web 3.0 and the Future of E-Commerce
    • Learn: 12 ways ecosystem projects can attract more developers
    • Learn: How Web3 is Impacting Education?
    • Learn: Web3 And The Future Of Digital Advertising
    • Learn: Web3’s impact on personalization, trust and engagement
    • Learn: Web3-Powered Identity Management -- Unlocking the Benefits of Decentralization
    • Learn: Why Web2 companies fail in Web3 while others made it?
    • Learn: To Identify or Not in a Web3 World?
    • 🤫[Insider Series] McKinsey x Web3
    • TL;DR 👀
  • 💲Blockchain Fundamentals
    • Why is Blockchain So Popular?
    • Introduction to Blockchain
    • Blockchain Misconceptions
    • Blockchain vs Bitcoin, Database, Cloud
    • Consensus Mechanism
    • Public and Private Keys
    • Hash Functions and Cryptography
    • Sharding
    • Types of Blockchains: PoW, PoS and Private
    • Understanding Cryptocurrency
    • Coins vs Tokens
    • Blockchain Trilemma
    • Legality
    • Learn : Google’s Cloud Based Blockchain Node Service
    • Learn: How Blockchain, Digital assets, and Web3 Unlock Financial Inclusion Globally
    • Learn: Will Chinese-Made Crypto Soar Higher?
    • Learn: What Does MiCA Mean for Crypto in Europe?
    • Learn: Unraveling the Intricacies of Blockchain Forensics and Asset Tracking
    • Learn: Promising blockchain use cases in healthcare industry
    • Learn: The Role of Blockchain in Authenticating and Provenance Art
    • Learn: Blockchain-Based Digital Identity: Benefits, Risks, and Implementation Challenges
    • Learn: The Future of Energy Supply Chains
    • Learn: Revolutionizing smart contracts and cryptocurrency
    • Learn: Nigeria goes blockchain
    • Learn: A Game Changer for Online Gaming?
    • Learn: Is blockchain technology ready for high-storage applications?
    • Learn: Will Blockchain Technology Mark a Turning Point in Fraud Prevention?
    • Learn: Why ZK-rollups need data availability?
    • Learn: How will generative AI disrupt blockchain?
    • Learn: A New Blockchain for Generative AI?
    • TL;DR 👀
  • 🏟️Web3 Utilities
    • Decentralized Applications (dApps)
    • Cross-chain Bridges
    • DAO
    • Artificial Intelligence
    • Learn: Is Community-building Essential for Web3 Startups?
    • Learn: ‘Decentralization Theater’
    • Learn: Crypto and AI- A yay or nay combination?
    • Learn: Dissecting the DAO
    • Learn: What is motivating Lido DAO to rise?
    • Learn: How to Turn Your Community Into a DAO?
    • Learn: The Key to Decentralized Decision Making
    • Learn: How Web 3.0 can disrupt the supply chain industry?
    • TL;DR 👀
  • 🪙Bitcoin
    • What is Bitcoin
    • Bitcoin's Blockchain Technology
    • UTXO Model and Transaction Fees
    • Bitcoin Mining and Mempool
    • Learn: What is bitcoin mining?
    • What are Hard Forks and Soft Forks
    • What is SegWit and the Lightning Network
    • Bitcoin Ecosystem
    • Can Bitcoin be Destroyed? Game Theory and Network Attacks
    • Learn: Crypto token supplies explained
    • Learn: What is crypto tax-loss harvesting, and how does it work?
    • Learn: Can Crypto Go Green? How to Invest in Eco-Friendly Cryptocurrencies
    • Learn: Why Did FTX Collapse? Here’s What to Know.
    • Learn: How Sam Bankman-Fried swindled $8 billion in customer money?
    • Learn: How much is Bitcoin worth today?
    • Learn: The Costs of Running a Bitcoin Node In Nigeria
    • Learn: Has 2022 Left Any Crypto Positives?
    • Learn: How Crypto Exchanges Can Be Free of Risk?
    • Learn: Greed, Lies and FTX: Is Crypto a Force for Good or Evil?
    • Learn: Is Crypto a Cultural Movement?
    • Learn: What are the consequences of crypto’s ongoing regulatory process?
    • Learn: Beyond the Crash and Embracing NFTs?
    • Learn: Understanding crypto bag holders and their mindset
    • Learn: Inscriptions: Just A Fad, Or A Real Threat To Bitcoin Becoming Decentralized Money?
    • Learn: How Bitcoin Ordinals Can Change the Future Of Mining?
    • Learn: What is a supernet?
    • Learn: Bitcoin Miners Celebrate 10 Years Since First ASIC, What Changed Since Then?
    • Learn: Bill Vs. CBDC – Why This US Congressman Wants To Block The Fed From Issuing A Digital Dollar?
    • Learn: Why Bitcoin Will Blow People’s Minds In 2025?
    • Learn: How the Howey Test Sheds Light on Cryptocurrency's Regulatory Gray Area
    • Learn: Cryptocurrency vs AI: A Complex Debate
    • Learn: Where the U.S. Government Went Wrong in Regulating Crypto?
    • Learn: The Nostr Privacy Paradox
    • Learn: Do algorithmic stablecoins have a future as centralized coins are under scrutiny?
    • Learn: Is Bitcoin Set To Revolutionize The Financial World With Its Superior Purchasing Power?
    • Learn: What is Shibarium, and what does it mean for Shiba Inu?
    • Learn: What is a crypto dusting attack?
    • Learn: Is the Adoption of Central Bank Digital Currencies (CBDCs) the Future?
    • Learn: How Artificial Intelligence Could Revolutionize Crypto?
    • Learn: What’s next for EU’s crypto industry as European Parliament passes MiCA?
    • Learn: Why the EU Has MiCA and the U.S. Has Securities Law Confusion?
    • Learn: Six New Projects Looking to Mitigate Bitcoin Mining’s Energy Footprint
    • Learn: Who on Crypto Twitter chose not to pay for a blue checkmark?
    • Learn: What is the wash-sale rule in Crypto?
    • Learn: What is Pepecoin and can it flip memecoins Dogecoin and Shiba Inu?
    • Learn: Can you recover stolen Bitcoin from crypto scams?
    • Learn: What the ‘anti-mining bill’ means for the crypto industry in Texas?
    • Learn: Does the US have a crypto ‘tax loophole’ problem?
    • Learn: How users can stay protected?
    • Learn: How Crypto Revolutionize Cheaper and Faster Transactions?
    • Learn: Can NFTs and CFDs be BFFs?
    • Learn: A PR expert’s tips for memecoin projects
    • Learn: Why politicians aren't convinced about the Digital Euro?
    • Learn: How A 90-Year Old TA Theory Predicted The Sudden Bitcoin Boom?
    • Learn: Social Trading Platforms and CFDs: A New Paradigm in Investment
    • Learn: How could the Chinese economic crisis impact Bitcoin and crypto?
    • Learn: How do they compare: Bitcoin IRA vs. traditional IRA?
    • Learn: Why Tokenized Assets Are Safer During a Banking Crisis?
    • TL;DR 👀
  • 🛢️Ethereum
    • Bitcoin vs Ethereum
    • What can Ethereum do?
    • What is Ether (ETH)?
    • What's Unique About ETH?
    • What are Smart Contracts?
    • Energy Consumption?
    • Ethereum Virtual Machine (EVM)
    • Pros & Cons of Smart Contracts
    • Decentralized Applications (dApps)
    • Ethereum Token Standards (ERC-20, ERC-721 and ERC-1155)
    • Evolution of Ethereum
    • How to Get Your First Ethereum
    • Learn: Next Ethereum Upgrade — Shanghai Upgrade
    • Learn: Tipping Scale for Crypto Adoption: Usability vs. Accessibility
    • Learn: Major Publicly Traded U.S. Bitcoin Miner Files For Chapter 11 – Impact On The Market?
    • Learn: 5 altcoin projects that made a real difference in 2022
    • Learn: How Tether Can Be a More Stable Stablecoin?
    • Learn: Are the Ethereum Killers Still Deadly?
    • Learn: What Ethereum Tech Trends Are Weathering the Bear Market?
    • Learn: How Ethereum’s token burns are making it a deflationary cryptocurrency?
    • Learn: A few things to know about Ethereum's Shanghai Upgrade
    • Learn: The Role of Enterprise Ethereum
    • Learn: Understanding Layer 2 Scaling Solutions for the Ethereum Network
    • Learn: The Battle of Giants: Bitcoin vs Ethereum
    • Learn: Cryptography, Smart Contracts and Distributed Networks
    • Learn: The Memecoin Grift and How It Threatens Ethereum Culture
    • Learn: What Is Ethereum’s ‘Data Availability' Problem, and Why Does It Matter?
    • TL;DR 👀
  • 👛Wallet
    • What is a Blockchain Wallet?
    • Hardware / Software Wallet
    • How to Get Your First Cryptocurrency
    • Setting up Metamask Wallet
    • Learn: How to connect the Avalanche network to MetaMask?
    • Learn: How to pass on your crypto when you die?
    • Learn: What are hierarchical deterministic (HD) crypto wallets?
    • Learn: Pros and Cons of Digital Wallets
    • Learn : How Web 3.0 Wallets Are Redefining Digital Asset Security?
    • Learn: Open source: Buzzword or real security for crypto wallets?
    • TL;DR 👀
  • 🌕New & Rising Protocols
    • Binance
    • NEAR
    • Solana
    • Fantom
    • Polygon
    • Cardano
    • Polkadot
    • Cosmos
    • Harmony
    • Cronos
    • Optimism
    • Terra
    • Who Will Win the L1 Wars?
    • Learn: New Layer 1 Blockchains Are Expanding the DeFi Ecosystem But No Eth Killers Yet
    • Learn: Is an Increased Focus on Layer-2 Scaling and ZK Technology Justified?
    • Learn: What Are the Stakes in the SEC vs. Ripple Case?
    • Learn: What is The Graph, and how does it work?
    • TL;DR 👀
  • 📈Decentralized Finance (DeFi)
    • CEX vs DEX
    • CeFi vs DeFi
    • Algorithmic Stablecoins
    • Airdrop
    • Liquidity Pool
    • Impermanent Loss
    • Swapping
    • Wrapped Token
    • Arbitrage Opportunities
    • Staking
    • Yield Farming
    • Total Value Locked (TVL)
    • Gas Fees
    • Lending & Borrowing
    • Useful Tools
    • Activity: Uniswap & Pancake Swap
    • Learn: Automated Market Makers (AMMs) in DeFi
    • Learn: Crypto Moving towards ESG: What Is Regenerative Finance (ReFi)
    • Learn: What Is dYdX? Understanding the Decentralized Crypto Exchange
    • Learn: It's A Wrap - DeFi in 2022
    • Learn: Why DeFi should expect more hacks this year?
    • Learn: The Security Challenges of DeFi
    • Learn: The Promising Future of Decentralized Social Media on Web 3.0
    • Learn: Can CBDCs, Tokenized Deposits, Stablecoins and DeFi Coexist?
    • Learn: The Increasing Popularity of DeFi and Its Potential to Disrupt Traditional Finance
    • Learn: The future of DeFi is ReFi
    • Learn: DeFi aggregation
    • TL;DR 👀
  • 🙈Non-Fungible Token (NFT)
    • What are NFTs?
    • Case Study
    • Storage
    • Who are the Players?
    • NFT Marketplace
    • NFT Useful Resources
    • Activity: Mint Your Own NFT
    • Learn: How You Can Prevent Hackers From Stealing Your NFTs?
    • Learn: What Is an NFT Floor Price?
    • Learn: Should Bored Ape buyers be legally entitled to refunds?
    • Learn: China’s view of NFTs different from rest of the world’s
    • Learn: NFTs IRL: How Digital Collectibles Are Forging Offline Experiences
    • Learn: How NFT Brands Can Cut Through The Noise
    • Learn: How Web3 disrupts the music sector?
    • Learn: Unlockable content in NFTs
    • Learn: Why Meta Matters in NFTs?
    • Learn: Should NFT Marketplaces Become Centralized?
    • Learn: Hermès vs. MetaBirkins: The NFT Case That Could Have Major Trademark and Artistic Consequence
    • Learn: What are phygital NFTs, and how do they work?
    • Learn: What is NFT ticketing and how does it work?
    • Learn: Why Solana NFT marketplace is seeing less active users?
    • Learn: NFTs and Intellectual Property
    • Learn: How AI Is Changing Artistic Creation and Challenging IP Laws?
    • Learn: The Future of NFTs: Exploring Dynamic NFTs and Their Versatile Use Cases
    • Learn: NFTs in the event and ticketing industry
    • Learn: What is NFT rarity, and how to calculate it?
    • Learn: What happens to your NFTs when you die?
    • Learn: Dogecoin-Like Spike in Milady NFTs After Elon Musk’s Tweet, But Will It Last?
    • Learn: What are NFT royalties, and how do they work?
    • Learn: How developers aim to store crypto inside NFTs?
    • Learn: Generative Art NFTs: What Are They & Why Are They So Popular?
    • TL;DR 👀
  • 💗Metaverse
    • What is the Metaverse?
    • Metaverse Economy
    • Metaverse Companies
    • GameFi
    • Learn: Are We in the Metaverse Yet?
    • Learn: Can the Metaverse exist without blockchain?
    • Learn: Can the Metaverse Facilitate Sustainable Growth of Defi Systems?
    • Learn: What is the role of biometrics in the metaverse?
    • Learn: Can metaverse be the future court?
    • Learn: Metaverse Fashion Is on the Rise, but for Whom?
    • Learn: Sustainability in the Metaverse: Challenges and Opportunities
    • Learn: How To Build A Responsible Metaverse?
    • Learn: What is a VTuber, and how do you become one?
    • Learn: How proof-of-identity provides human experiences?
    • Learn: The “Metaverse” Next Frontier for Business: Impact And Challenges
    • Learn: The 5 Biggest Misconceptions About The Metaverse
    • Learn: Why culture and ownership are critical to the metaverse?
    • TL;DR 👀
  • 👾Career in Web3 (coming soon)
    • Developers
    • Moderators
    • Community Managers
    • UI/ UX Designers
    • Digital Fashion Designers
  • 🌱Sustainability (Coming Soon)
    • Industry Effort
    • Co-author
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On this page
  • Inside the court room
  • What's at stake?
  1. Non-Fungible Token (NFT)

Learn: Hermès vs. MetaBirkins: The NFT Case That Could Have Major Trademark and Artistic Consequence

The trial between NFT artist Mason Rothschild and French luxury house Hermès came to a close on Monday after a year-long trademark battle over an NFT project inspired by the brand's famous handbag.

PreviousLearn: Should NFT Marketplaces Become Centralized?NextLearn: What are phygital NFTs, and how do they work?

Last updated 2 years ago

The limits of art and trademark law were tested this past week as the trial between 28-year-old non-fungible token () artist Mason Rothschild and Hermès comes to a close.

Tensions have been brewing between the two entities since December 2021, when Rothschild released his collection of 100 furry digital handbags titled – a name that serves as a nod to Hermès' – at Art Basel in Miami. The project was an extension of a one-of-one NFT artwork called "," which originally sold at auction in May 2021 for 5.5 ETH, .

Upon release, Rothschild said that his new series was "inspired by the acceleration of fashion’s 'fur-free' initiatives and embrace of alternative textiles." The NFTs in the collection had a starting price of 0.1 ETH, or about $450 at the time of its release.

Hermès was not pleased with the project and to Rothschild on December 16, 2021. According to , the collection made over $1 million in sales by January 2022 before OpenSea, and soon other marketplaces, .

Hermès International against him on January 14, 2022, claiming that Rothschild was "stealing the goodwill in Hermès' famous intellectual property to create and sell his own line of products," which could create confusion among its consumer base.

According to a message posted by Rothschild to Twitter, he called the claims made by Hermès "baseless" and said he hoped to set a precedent in the art and NFT spaces.

"I am not creating or selling fake Birkin bags. I've made artworks that depict imaginary, fur-covered Birkin bags," he wrote. "The fact that I sell the art using NFTs doesn't change the fact that it's art."

Rothschild sought to bolster his case by referencing a letter sent by the product marketing manager for the Campbell Soup Company to artist Andy Warhol in 1964, which praised his iconic pop-art work featuring the nonperishables and wished it success.

In March 2021, Rothschild argued that his work was a commentary on the "animal cruelty inherent in Hermès’ manufacture of its ultra-expensive leather handbags," and was protected by the First Amendment. "These images, and the NFTs that authenticate them, are not handbags; they carry nothing but meaning," his lawyers wrote in the filing.

Rothschild filed to dismiss the case in May 2022, though a New York federal judge denied the motion in a . Similiarly, Hermès in October 2022, which the judge also denied.

The suit officially at the US District Court for the Southern District of New York on January 30, 2023.

Inside the court room

After six days, the courtroom assembled Monday for closing arguments from the Hermès and Rothschild's lawyers ahead of the jury's deliberations.

Oren Warshavsky, a lawyer representing Hermès, outlined the findings gathered from the week's testimonies. He explained that Hermès was "trying two different cases," which included confusion for consumers as to who issued the NFTs as well as damage to the Birkin brand through dilution.

“Rothschild’s MetaBirkin NFTs and Birkin Bags aren’t sold side-by-side," said Warshavsky, explaining the similarities between physical Birkins and MetaBirkin NFTs that might mislead NFT collectors. "If you saw [both of them] would you know the difference?”

"The NFT market is immature and highly speculative, and most people don’t know how it works," he added.

Rothschild's defense brought in Dr. David Neal, managing partner and founder of Catalyst Behavioral Sciences, to analyze a pre-trial survey conducted by president of MMR strategy group Dr. Bruce Isaacson to test for the likelihood of confusion as to whether Hermès' Birkin bags and MetaBirkin NFTs were related.

While Isaacson found that the percentage for likelihood confusion among the surveyed population was 18.7%, Neal re-coded the data and found a 9.3% figure, suggesting that more people were aware of the distinction between Birkin Bags and MetaBirkin NFTs than previously reported.

Warshavsky additionally highlighted that dilution to the Hermès brand stems from using the Birkin name in the NFT collection itself. He claimed that the more people who use a given trademarked name, the fewer people associate it with the original brand. Using the international coffee chain Starbucks as an example, he noted that if an entrepreneur chose to make a sportswear company called Starbucks, over time, the name Starbucks would hold less value as a café brand.

Other testimonies in the case pointed to the fact that Rothschild's use of the trademarked Birkin name helped him acquire value for his collection. Warshavsky referenced Harvard Business School professor and investment firm a16z researcher Scott Kominers' Friday testimony, which stated that the MetaBirkin NFT collection raked in major profits before it minted due to its use of the Birkin name.

“Metabirkins sold at the amount they did because of the Birkin name," said Warshavsky. "People spent that money because of the name MetaBirkin, regardless of which NFT they were getting.”

The jury is expected to reach a verdict by this week.

What's at stake?

The trial has garnered attention from spectators across the crypto, art and law spaces, as the case ties together questions regarding trademarks, NFTs and First Amendment rights.

"One of the most important questions in this case thus far has been how the court will analyze trademark infringement claims in connection with NFTs – will the court analyze the case in the context of consumer confusion, the way Hermes sought for, or is this a case about artistic expression?" Sher said.

"The Rogers Test states that an artist can use a trademark in connection with an expressive work if the trademark is artistically relevant to the product and doesn’t explicitly mislead consumers as to the sponsorship, endorsement or other connection to the brand," she said. "Hermes argues that although Rothchild’s NFT bags don’t have real-world utility, many luxury brands are entering the digital space and creating digital assets of their own which creates consumer confusion."

She added that the case also looks at whether Rothschild's NFTs do not have any added utility and are not virtual wearables for metaverse spaces, which would be considered "non-speech, commercial and arguably functional products that just now happen to be in virtual form."

"The increasing innovation around virtual products in connection with metaverse technologies will require further analysis that the courts have not yet addressed," she added. "It will be interesting to see how courts will analyze trademark infringement claims in the context of virtual functional NFTs and how this in turn will affect brands’ decisions to launch functional NFTs in the virtual space."

"This case is one of the first and arguably the most prominent lawsuits to ever focus on trademarks and NFTs and whether trademark rights extend to the digital sphere," , senior counsel at Greenspoon Marder LLP, told CoinDesk. "This case could very well set a legal precedent not only for trademarks in the context of NFTs, but for all digital assets as they relate to fair use and free speech."

Last week, Rothschild argued that his NFTs were "part of an experiment" to showcase what defines value in the luxury space. "Is it the image or the actual product?" .

Sher says a pivotal point in the case came in May 2022, when the district court said it would analyze the case with the standard – a pivotal 1988 trademark lawsuit between actress Ginger Rogers and film producer Alberto Grimaldi – that examines the balance between artistic expression and trademark infringement.

🙈
NFT
MetaBirkins
signature Birkin handbag
Baby Birkin
or about $23,500 at the time
sent out a cease and desist letter
Reuters
delisted it from their sites
filed a trademark lawsuit
one-page order
pushed for a summary judgment
moved to trial
Gai Sher
he told the nine person jury
Rogers v. Grimaldi