Firm News

On February 2, 2023, Partner Michael Kasdan was quoted in ManagingIP‘s article titled, “Why the Hermès NFT case unnerves (and excites) counsel.” The article discusses the trademark battle between Hermès and Mason Rothschild in a pending case in the Southern District of New York over ‘MetaBirkin’ NFTs and the significant implications for artists and brand owners. Hermès claims that the NFTs infringe and dilute its Birkin trademark. Rothschild claims his ‘MetaBirkins’ are expressive works that are protected by the First Amendment.

Mike stated, “A Hermès victory could push artists to take more care when going into new areas such as NFTs or the metaverse even if they think they’re just making playful artistic references. They’ll want to minimize the chances their creations are taken down because of trademark issues.” He also noted that a decision either way could ultimately be good for licenses and licensors, paving the way for more collaborations the licenses between artists and brands if they are willing to think creatively about IP and monetization: “Clear guidance from courts about what is and isn’t allowed could pave the way for more licensing agreements.”

Finally, Mike stressed that, “the guidance that could come out of this case might be somewhat limited, of course, given that it’s a jury trial” and a single District Court case. Although, he noted that “there has already been helpful guidance in the court’s denial of the defendant’s motion to dismiss” and that “the jury’s decision is valuable because it’s helpful to understand how fact-finders would look at this scenario.”

To read the article, click here.

(Subscription required)