Hermès recently won a legal battle against the artist Mason Rothschild (aka Sonny Estival) concerning Rothschild’s NFT collection “MetaBirkins,” 3D renderings of the company’s iconic Birkin bag covered in fur in a variety of patterns. Since that ruling last month, Rothschild has continued to promote and sell MetaBirkin NFTs on social media, and now Hermès is seeking an injunction against him.
“Rothschild will continue infringing; he has shown that he cannot be trusted,” reads Hermès’s request for a permanent injunction.
A permanent injunction is used to force an individual to do something or refrain from doing something. Violating an injunction means the individual will be held in contempt of court, which often leads to jail time or fines, according to the Cornell Law School’s Legal Information Institute.
To achieve an injunction against Rothschild, Hermés will have to prove that he has done them an irreparable harm, that other remedies (such as paying monetary damages) are not sufficient, that when balancing the “hardships” of both parties the relief is equitable, and that public interest would not be done a disservice by this legal action.
In the injunction, Nicolas Martin, Hermès’s general counsel, quoted what he had said during the trial: “If we are to enter into this new digital world, if we want to bring our most iconic handbag in this digital world, there would always be a reference to this MetaBirkin. And I think that being the first is a first, and we lost this opportunity of being the first on the market, which I think is really something very impactful for Hermès.”
In essence, Hermès is arguing the Rothschild’s MetaBirkin project has diluted the brand and that if the project is allowed to continue, MetaBirkin will potentially confuse prospective clients, especially as the brand claims that they had been preparing to make NFTs using their Birkin design.
Hermès is lobbying the court to have Rothschild cease using the Birkin trademark; to have him transfer domains and social media handles using the word Birkin to Hermès, along with any MetaBirkin NFTs in his possession; to have him inform Hermès of any profits he made off the project since the trial began and then give those funds to Hermès; and to have him get in contact with MetaBirkin holders and notify them of the injunction.
In a statement to ARTnews, Rothschild’s legal team said, “This case is far from over. This latest filing is a gross overreach by Hermes and an attempt to punish Mr. Rothschild because they don’t like his art, but what’s new? Mr. Rothschild will be responding in the Court in due course.”