While it may feel like NFTs were so 2022, the trade mark infringement case brought by Hermes against Mason Rothschild over Rothschild's collection of 100 Metabirkin NFTs that are furry representations of the famous Birkin handbags started yesterday in New York. The early skirmishes have been about expert evidence that will be allowed. In the case of Rothchild, he wanted to introduce expert evidence to support his assertion that his NFTs are like Andy Warhol famous Campbell Soup screen paintings and thus artistic expression protected by the First Amendment. The court ruled the art expert out which will be a blow for Rothchild. It will be interesting to see what else comes in this case as it proceeds.
If you would like to read more M&C insights on this topic, I recommend reading my colleague Robeeca Davey's latest article here.
The digital artist behind "MetaBirkin" nonfungible tokens can't present testimony from an art critic who studies the work of Andy Warhol, Judge Jed S. Rakoff ruled on the first day of a novel trademark trial involving Hermès International SA.
That may ultimately doom Mason Rothschild's ability to compare his NFTs to the famous art created by Warhol, like his silk-screen prints of Campbell's soup cans, Rakoff said Monday in the Southern District of New York. Rakoff granted, without detailed discussion, Hermès bid to exclude testimony from famed art critic Blake Gopnik
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