MetaBirkins saga continues: Rothschild potentially seeks new trial against Hermès
In what is turning out to be a long-winded back-and-forth of various claims, the MetaBirkins case has moved onto the next phase of the legal battle against artist Mason Rothschild and luxury brand Hermès. In the latest development, Rothschild has now filed two court submissions in a bid to regain some control of the situation.
Last month, the artist lost a case brought against him by Hermès, which had accused him of trademark infringement after he released and sold a series of non-fungible tokens (NFTs) that bore resemblance to the house’s iconic Birkin bag. In a New York court, a nine-person jury ruled in Hermès’ favour, awarding the house compensatory damages and determining that Rothschild had profited from the brand by creating the digital assets.
Now, Rothschild is hoping to turn the tables with the two new submissions, one of which comes as a response to Hermès’ motion for permanent injunctive relief that the French fashion house filed last week. The filing asked the court to force the artist to turn over all materials related to the MetaBirkins artworks to Hermès, including the website domain and social media handles, after it claimed Rothschild was continuing to profit off the NFTs.
Rothschild claims Hermès executed ‘dishonest conduct’
Rothschild has asked for the filing to be denied in its entirety, with his legal team calling Hermès injunction “grossly overreaching”, labelling the brand’s behaviour as “dishonest conduct”. In Rothschild’s filing, it is claimed that Hermès hired experts that made “false and misleading statements” during its initial trial testimony.
If the court does not deny the injunctive relief on this basis, Rothschild has then asked to order the use of a disclaimer to be displayed alongside the promotion and sales of MetaBirkins “to protect his first Amendment Rights” and the rights of the NFTs’ owners. The disclaimer would note that the assets were not affiliated, endorsed or sponsored by Hermès.
Next to this, Rothschild has also called for a renewed motion for judgement, which could possibly lead to a new trial. In his filing, the artist has outlined errors he believed the court made when sending the case to a jury, as well as its decision to exclude the expert testimony of art critic Blake Gopnik. If followed through, the result of the motion could result in a judgement for Rothschild notwithstanding the jury’s verdict or a completely new trial, before the case goes to a potential appeal.