Fashion law attorney Danielle Garno was interviewed for a Law360 article about the top copyright and trademark cases to watch out for in the second half of 2022. She commented on the Hermes v. Rothschild case, in which Hermes, French luxury brand Hermès International, sued designer Mason Rothschild over a "MetaBirkins" line of nonfungible tokens (NFTs), claiming the NFTs infringe its trademarks for the brand's Birkin bags. In May, a New York federal judge declined Rothchild's request to dismiss Hermes' accusations, referencing the U.S. Court of Appeals for the Second Circuit's ruling in Rogers v. Grimaldi that established a test for balancing the public interest in avoiding consumer confusion with the First Amendment right to free expression. Ms. Garno said the court had theorized that the MetaBirkins NFTs might not be considered artwork if they represent virtually wearable handbags. Instead, they could be considered a "non-speech commercial product," which is not protected under the First Amendment.
"According to [U.S. District Judge Jed Rakoff], NFTs and virtual goods may, in fact, infringe on trademarks in the physical realm," Ms. Garno stated.
READ: Copyright & TM Cases to Watch in the Second Half of 2022 (Subscription required)
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