In Hermès v. Rothschild, the MetaBirkins case, a Manhattan federal jury found digital artist Mason Rothschild liable in February 2023 for trademark infringement, dilution, and cybersquatting after he sold NFTs branded “MetaBirkins” depicting fur-covered versions of the Hermès Birkin handbag. The jury awarded Hermès $133,000, rejected Rothschild’s First Amendment defense, and the court later ordered him to hand over the MetaBirkins.com domain and related accounts. It was the first federal trial to test whether a famous brand name could be attached to a digital collectible and defended as art. The jury said no.
The MetaBirkins Project and Hermès’ Lawsuit
Rothschild minted 100 NFTs, each showing a Birkin bag wrapped in colorful faux fur or patterned material, and launched the collection during Art Basel Miami in late 2021. He pitched the project as commentary on luxury culture and the fashion industry’s use of animal products. The NFTs reportedly generated over $1 million in sales plus ongoing creator royalties on resales.
Hermès filed suit in January 2022 in the U.S. District Court for the Southern District of New York, bringing Lanham Act claims for trademark infringement, trademark dilution, and cybersquatting tied to Rothschild’s registration of MetaBirkins.com.1Justia. Hermes International et al v. Rothschild – Opinion and Order Hermès argued that buyers and media outlets had actually been confused about whether the company was involved, that the MetaBirkins blurred the distinctiveness of a decades-old luxury mark, and that Rothschild was trading on the Birkin name to sell his own product line.
A threshold question was whether trademark law reaches NFTs at all. The court held that it does. Digital goods sit within the scope of Lanham Act protection, which set up the real fight: artistic expression.
The First Amendment Defense and the Rogers Test
Rothschild argued that the MetaBirkins were art, not handbags. He compared the collection to Andy Warhol’s Campbell’s Soup Cans, saying he was using a consumer product as raw material for cultural commentary about status, luxury, and the ethics of animal-derived fashion.
His defense ran through the Rogers v. Grimaldi test, a Second Circuit framework from 1989 that balances trademark rights against artistic freedom.2Justia. Rogers v. Grimaldi – 695 F. Supp. 112 Under Rogers, using another party’s trademark in an expressive work is permissible unless the use has no artistic relevance to the work, or the use explicitly misleads consumers about the work’s source.1Justia. Hermes International et al v. Rothschild – Opinion and Order
Rothschild said the Birkin name was artistically relevant to his commentary and that he never claimed Hermès endorsed the NFTs. Hermès countered that calling something art does not transform what was essentially a branding exercise. Rothschild ran an online storefront, marketed the NFTs like a product line, and collected royalties on every resale.
What the Jury Decided
On February 8, 2023, a nine-member federal jury sided with Hermès on every count. It found Rothschild liable for trademark infringement, trademark dilution, and cybersquatting, and concluded that the First Amendment did not shield his conduct.3SDNY Blog. Verdict Form – Hermes v. Rothschild 1:22-cv-00384-JSR
The jury awarded Hermès $110,000 in disgorgement of Rothschild’s net profits from the NFT sales and an additional $23,000 for the cybersquatting violation, totaling $133,000 in damages.3SDNY Blog. Verdict Form – Hermes v. Rothschild 1:22-cv-00384-JSR Modest, compared to the reported seven-figure revenue the MetaBirkins had produced. The teeth came later.
The Permanent Injunction
After the verdict, the court granted Hermès a permanent injunction. Rothschild was ordered to stop using the Birkin marks and to transfer the MetaBirkins.com domain and related social media accounts to Hermès.
The judge declined, however, to order Rothschild to hand over the MetaBirkins NFTs themselves, reasoning that they were “at least in some respects works of art.” That carve-out acknowledged some expressive value in the images while cutting off Rothschild’s ability to continue trading on the Birkin name. For Hermès, the injunction mattered more than the damages check: it gave the company control of the online infrastructure Rothschild had built around its trademark.
How Jack Daniel’s Changed the Legal Ground
Months after the MetaBirkins verdict, the U.S. Supreme Court decided Jack Daniel’s Properties v. VIP Products, involving a dog toy shaped like a Jack Daniel’s bottle. VIP Products had argued that Rogers protected its parody. The Supreme Court disagreed, holding that when a party uses a trademark “as a designation of source for the infringer’s own goods,” the Rogers test does not apply at all. Standard trademark infringement analysis governs instead.4Justia. Jack Daniels Properties Inc. v. VIP Products LLC – 599 U.S. 22-148
That ruling matters here because Hermès argued throughout the trial that Rothschild used “MetaBirkins” as a brand name for his product line, not just as an element inside a piece of art. If Rogers falls away whenever a trademark functions as a source identifier, Rothschild’s strongest legal shield may have been eliminated entirely.
The Second Circuit Appeal
Rothschild appealed the verdict and several of the district court’s legal rulings to the Second Circuit Court of Appeals. His team argued that Judge Rakoff misapplied Rogers at trial by focusing on Rothschild’s intent to profit from Hermès’ brand reputation rather than on whether the NFTs had genuine artistic relevance. Hermès countered that Rogers should never have applied at all, because Rothschild used the Birkin mark as a brand identifier for his own commercial product.
The Second Circuit heard oral arguments on October 23, 2024. As of late 2024, the appellate court had not yet issued its decision. If the verdict is upheld, the rule hardens: NFT creators cannot use famous trademarks to brand digital collections, even when those collections carry expressive elements. If reversed, the door reopens for broader artistic freedom in digital spaces.
What the Ruling Means for NFT Creators and Brand Owners
The MetaBirkins verdict was not an isolated event. Nike pursued a similar trademark case against StockX over NFTs depicting Nike sneakers, which settled in August 2025 after a judge allowed most of Nike’s infringement and dilution claims to proceed to trial. Major brands are willing to litigate aggressively over their marks in digital spaces, and courts have been letting them.
For creators, the hard lessons run in one direction. Labeling a project “art” does not automatically trigger First Amendment protection, especially where the creator markets the work like a product, builds a brand around it, and collects resale royalties. The more a project looks like a commercial enterprise, the weaker the artistic-expression defense becomes. And after Jack Daniel’s, using a famous mark as the name of your own product, rather than incorporating it into a larger creative work, likely means Rogers offers no help at all.4Justia. Jack Daniels Properties Inc. v. VIP Products LLC – 599 U.S. 22-148
The case did not shut down NFT art or NFT-based commentary on brands. It drew a line. Referencing a brand within a work of art is one thing. Branding your product with someone else’s trademark is another, and in Rothschild’s case it produced a $133,000 verdict, a permanent injunction, and the loss of the domain and accounts he had built the project on.