In an interview with Managing IP, partner Ron Dreben discussed the trademark battle over MetaBirkin NFTs. Hermès—which designs Birkin bags—has claimed that artist Mason Rothschild’s MetaBirkin virtual handbags sold as NFTs constituted trademark infringement. A case by jury trial began on Monday, January 30, 2023, in the US District Court for the Southern District of New York.
According to Ron, the key takeaway if Hermès is not successful is that NFTs with commercial elements could be considered art, and titles of such works similar to trademarked works could be treated as protected speech.
Still, Ron noted, artists may need to defend themselves when using third-party marks even if this happens.
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