The MetaBirkins Verdict: 5 Key Takeaways for Brands and Creators

By: Nathaniel L. Bach | Sherli M. Furst
– The Fashion Law

Manatt Entertainment Partner Nathaniel Bach and Intellectual Property Protection and Enforcement Counsel Sherli Furst wrote an article for The Fashion Law about the recent MetaBirkins verdict and what artists and brands should know about the creation and monetization of digital assets going forward.  

The case stems from a dispute between luxury fashion brand Hermès International and Los Angeles designer Mason Rothschild regarding Rothschild’s alleged infringement and dilution of Hermès’ trademarks in his creation of an NFT “MetaBirkins” collection based on the brand’s Birkin handbags. In February 2023, a New York jury ruled in favor of Hermès and awarded the company $133,000.  

Bach and Furst provide five key takeaways from the case: 

  1. The verdict does not impugn NFTs generally or suggest they are a lesser form of artwork, but rather indicates that digital assets’ commercial component must be considered. 
  2. There were various “plus” factors at issue in this suit that likely led the jurors to the final verdict. 
  3. The Rogers test, which examines the use of trademarks in expressive works, still—for the moment at least—governs these inquiries. 
  4. The decision fits within a line of other related cases, which may also shed light on the extent of permissible uses of NFTs. 
  5. Considerations are different for the creators and sellers of digital assets versus for purchasers, licensees or end users. 

Read the full article in The Fashion Law here.  



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