Hermès clashes with artist who created MetaBirkins NFT

The artist behind a colourful collection of fluffy non-fungible tokens based on the well-known Birkin bag, who claimed that scammers were profiteering from his idea, has been hit with a similar accusation from fashion house Hermès.

Mason Rothschild, the artist who created NFTs of the bags which have traded for 200 ethereum (around $790,000) in sales as of Friday, estimated that scammers have made $35,000 from selling fake versions of his creations, called MetaBirkins. Rothschild said he saw “more and more fake MetaBirkins sold every hour” through online marketplace OpenSea the day before his collection launched on the same website.

“The people who bought those [NFTs], they can’t get that money back,” Rothschild said. “The blockchain is pretty relentless — you can’t call your credit card company and get it returned, once a transaction goes through, it’s a done deal.”

But Hermès, whose original physical Birkin bags range from $9,000 to $500,000, said Rothschild was ripping off its designs and had infringed the company’s trademark.

“Hermès did not authorise nor consent to the commercialisation or creation of our Birkin bag by Mason Rothschild in the metaverse,” the company said, adding that Hermès has not yet entered the NFT market because it values the “tangible expression of handcrafted physical objects”.

“These NFTs infringe upon the intellectual property and trademark rights of Hermès and are an example of fake Hermès products in the metaverse,” it added.

The decentralised nature of the NFT world means anyone can easily sell an image for thousands and claim it is theirs, a problem that has triggered widespread accusations of copyright infringement.

“The valuable IP is the original work, which you would argue is the Hermès bag,” said Colin Bell, head of intellectual property at law firm Brabners.

In theory, MetaBirkins is taking away revenue stream from Hermès if it wanted to market its bags as NFTs, he said. “The public could be confused and think the MetaBirkins are official.”

Rothschild declined to comment on Hermès’s and Bell’s statements.

“Disputes like this are a reflection of the ‘wild west’ nature of NFT collections at the moment,” said Kostyantyn Lobov, partner at Harbottle & Lewis.

“As brands become more aware of their rights being used without consent (and the sometimes significant amounts of money changing hands in the process) we are likely to see more complaints of this sort in the near future.”

OpenSea, the online marketplace, has been the focus of complaints from other NFT marketplaces such as Nifty’s and artists, who claim work has been lifted and displayed on the platform by illegitimate sellers.

“The only way people will see my designs on these [NFT selling platforms] is if they’re fake,” said Jennifer Budrock, who goes by the name Birdhism and chooses not to sell NFTs due to the environmental impact involved in some cryptocurrencies.

Her art was advertised without permission on OpenSea as an NFT and has since been removed. “I have an IP lawyer, and a vigilant audience that alerts me to art theft, but it’s like whack-a-mole,” she said.

OpenSea did not respond to requests for comment.

There is little recourse for unwitting buyers who buy fake NFTs because they are usually traded in unregulated cryptocurrencies such as ethereum, which are not covered by credit card policies.

Although NFTs can be sold on sites such as OpenSea, transactions are processed on the blockchain. If any fraud has been committed it can be hard to trace the real identity of the person who owns the wallet where the cryptocurrency is stored.

“One of the defining features of NFTs on public blockchains is that through their uneditable entry on the blockchain, anyone can verify their ownership history,” said Nadya Ivanova, chief operating officer at L’Atelier, a trend-forecasting unit of French bank BNP Paribas. “It’s up to individual consumers to check that information, just as they would if they were buying a valuable physical asset.”

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