Firm News

On February 10, 2023, Partner Michael Kasdan was quoted in ManagingIP‘s article titled, “MetaBirkin NFT verdict boosts trademark counsel confidence.” The article explains the recent verdict in favor of Hermès on the luxury brands’ ‘Birkin’ trademark infringement and dilution claims against artist Mason Rothschild who had produced a ‘MetaBirkins’ NFT collection and collected commentators and practitioners reactions to the impact of the verdict on the enforcement of trademark rights in the realm of NFTs.

Mike explained he wasn’t sure whether the decision will change the status quo much, but a ruling in the artist’s favor would have had a bigger impact the other way, ‘It’s a sigh of relief for brand owners that Hermès won the case.” He also noted that in applying the Rogers Test, “The judge was interested in the subjective intent of Rothschild – whether the artist was more interested in commercializing or profiting than in artistic commentary, “This analysis will be frustrating for artists who will argue that there’s not a clear line between art and commerce given that they want to make money through their art.” On the other hand, he stated, “trademark owners have expressed frustration that someone can play off their brands, cause confusion and get away with it by calling it art.”

Kasdan also noted that the jury had asked the judge what would happen if it was unanimous when deciding trademark infringement and dilution but divided over whether the artist was protected from liability because of the First Amendment, “The judge told them to keep deliberating, but the question indicates that members were struggling with the right balance and that lawyers and courts might need more guidance on this issue,” which we could get if this case is appealed to the Court of Appeals for the Second Circuit.

To read the article, click here.

Mike was also interviewed by ManagingIP on the same case here.