Hermès Motions to Block Metabirkin NFT Sales Following Trial

Hermès petitioned a New York Court to not allow Mason Rothschild to promote or sell his Metabirkins NFTs and to give ownership back to Hermès. This is the latest action the fashion giant has taken against Rothschild.

Vogue Business interviewed Finnegan partner Mark Sommers where he identified the four factors Hermès has to prove to be granted the injunction: whether Hermès was irreparably harmed by Rothschild’s actions; whether money damages are insufficient to compensate the alleged harm Hermès suffered; whether the harm to Hermès absent an injunction outweighs harm to Rothschild should an injunction issue, and vice versa; and whether the public would be “disserved” by a permanent injunction.

Mark said, “Should the court grant Hermès’s request, the implications will be minor. The harm is less about monetary loss than loss of brand value (in this case, the Birkin brand). The injunction, which would stop Rothschild from promoting the Metabirkins NFTs, is a way for Hermès to double down and ’remedy that loss of value.’”

He added that a denial could actually be more disruptive, as it could cause NFT creators to think they can continue to leverage valuable trademarks even after infringement has been found. He said, “So long as some minimal damages are awarded to the trademark owner, the trademark owner would then be left to sue again, which could create an unproductive cycle of litigation between brand owners and creators.”

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