An artist sold $1.1m of fake fur Birkins as NFTs — Hermès sued and won every count

In December 2021, artist Mason Rothschild — born Sonny Estival — released MetaBirkins: 100 NFTs linked to digital images of furry, Birkin-shaped handbags, described as 'metaverse ready' and framed as a tribute and a commentary on fur-free fashion. The first one sold on December 3, 2021 for $42,000, from an initial mint price of $450; total transaction volume reached about $1.1 million, with Rothschild collecting a 7.5 per cent royalty on resales. Hermès, which had no NFT Birkin of its own, watched its most protected product name become someone else's digital product line.

On January 14, 2022, Hermès sued in Manhattan federal court: trademark infringement, dilution and cybersquatting. Rothschild answered with the First Amendment — the NFTs were art, he argued, as protected as Warhol's Campbell's soup cans. Judge Jed Rakoff let the case go to a jury, which on February 8, 2023, after an eight-day trial, returned a unanimous verdict for Hermès on every count, finding Rothschild had intentionally designed the project to confuse the public. Damages: $133,000, against the $231,055.76 Hermès had sought. 'This is far from over,' Rothschild said.

It got worse. On June 23, 2023 the court denied Rothschild's bid for a new trial, granted Hermès a permanent injunction, ordered the metabirkins.com domain transferred and profits disgorged. In December it refused to pause collection of the judgment or accept the NFTs as collateral — their value was 'not ascertainable.' Oral argument on his appeal followed at the Second Circuit in October 2024. The case stood as the first landmark ruling that a luxury trademark reaches goods that exist only as images.