IP issues related to the metaverse, blockchain technologies and crypto assets will continue to be an important focus for rights holders and businesses entering or expanding into this evolving space in 2023. Two metaverse and NFT lawsuits took centre stage last year, with the outcomes now eagerly awaited: Hermès’s suit over MetaBirkins NFTs and Nike’s suit against StockX.
Hermès v Rothschild
Hermès filed a lawsuit against artist Mason Rothschild for his use of the BIRKIN trademarks in connection with his MetaBirkins NFTs, alleging trademark infringement and dilution. Rothschild argued that the claims should be dismissed based on Rogers v Grimaldi and subsequent case law indicating that digital images of the bags are art and receive protection under the First Amendment. However, Hermès contended that the sale of NFTs was purely commercial and Rogers was consequently inapplicable.
In May 2022 the US District Court for the Southern District of New York found that Rothschild’s MetaBirkins NFTs were digital images capable of constituting a form of artistic expression, meaning…