In December 2021, an artist named Mason Rothschild released a collection of NFTs called "MetaBirkins" — digital images of the iconic Hermès Birkin bag, reimagined covered in colorful fur. The bags weren't real. You couldn't carry one. They existed only as image files attached to tokens on a blockchain. And they sold for thousands of dollars each.
Hermès, which has guarded the Birkin name since the 1980s, sued for trademark infringement. Rothschild's defense was simple and powerful: these aren't bags. They're art. And art, under the First Amendment, gets wide latitude to reference real-world brands.
Art vs. Trademark
This was the heart of the case, and it's a genuinely hard question. Andy Warhol painted Campbell's soup cans without Campbell's permission, and that's protected expression. So why couldn't Rothschild make digital art referencing a Birkin?
U.S. courts use a framework — the Rogers test — to balance trademark rights against artistic free speech. The test asks whether the use of the mark has any artistic relevance to the work, and whether it explicitly misleads consumers about the source. Genuine artistic commentary is protected. Using a brand name to sell a product and confuse buyers is not.
The verdict: In February 2023, a New York jury found Rothschild liable for trademark infringement and awarded Hermès $133,000. The jury concluded the MetaBirkins were not protected artistic expression but were designed to mislead consumers into thinking Hermès was behind them — closer to a counterfeit than a commentary.
Why It Mattered Far Beyond One Artist
The MetaBirkins case was one of the first to test whether decades-old trademark law applies to virtual goods — NFTs, metaverse items, digital fashion. The answer it delivered: yes, a trademark protects your brand in digital spaces too, not just on physical products. A brand name doesn't stop being protected because the "product" is a JPEG.
It also clarified the limit of the "it's art" defense. Calling something art doesn't automatically immunize it. If the real purpose is to trade on a brand's recognition and confuse consumers about who made it, the First Amendment won't save it.
The Lesson for Modern Brands
Hermès won because it had treated the Birkin as a serious trademark asset for decades — registering the name, protecting the shape, enforcing consistently. That long record made it credible when it argued that consumers genuinely associate "Birkin" with Hermès, even in a brand-new medium nobody had imagined when the bag launched.
The metaverse is new. The principle isn't. A strong, well-maintained trademark travels into whatever medium comes next — physical, digital, or something not invented yet. The brands that protect their names today are the ones that will still own them when the products become files.
Frequently Asked Questions
Can you trademark-infringe with an NFT?
Yes. The MetaBirkins case confirmed that using a protected brand name on NFTs or other virtual goods can constitute trademark infringement, just as it would on physical products. A trademark's protection isn't limited to tangible goods — it extends to digital uses that cause consumer confusion.
Why didn't the "it's art" defense work for MetaBirkins?
Under the Rogers test, artistic use of a brand is protected only if it has genuine artistic relevance and doesn't explicitly mislead consumers about the source. The jury found the MetaBirkins were designed to make buyers think Hermès was behind them, so the First Amendment defense failed.
How much did Hermès win?
A New York jury awarded Hermès $133,000 in February 2023, finding Mason Rothschild liable for trademark infringement and dilution over the MetaBirkins NFTs.
Does a trademark protect a brand in the metaverse?
Yes. The case established that established trademark rights extend to virtual goods and digital spaces. Many brands now also file trademark applications specifically covering downloadable virtual goods and NFT-related services to strengthen that protection.