Mason Rothschild wrapped up his testimony Thursday at the trademark infringement trial that was brought forward by Hermès and is being held in the Southern District of New York.
The California-based artist has been accused of trademark infringement, dilution and cybersquatting. Rothschild introduced 100 “MetaBirkin” NFTs, two-dimensional images of faux-fur covered handbags that were inspired by the luxury house’s prized Birkin.
Hermès’ executives and its legal team have alleged Rothschild confused consumers and diluted the brand, as well as affected their own already-in-the-works plans for NFTs and the metaverse. Rothschild, whose given name is Sonny Estival, has said the project stemmed from the fur-free initiative that was becoming popular in the fashion industry in late 2021 and his interest in trying to duplicate the illusion of value for the digital handbags that Birkins have in real life. He and his team have argued repeatedly that his artistic expression is protected by the First Amendment and the two-dimensional blockchain-hosted images cannot be used as handbags in the metaverse.
The initial asking price in Ethereum for the 100 NFTs was valued around $450, and some later were resold for tens of thousands.
The case’s ruling, which is not expected until early next week, could be influential in how intellectual property infringement and First Amendment apply to the digital world.
During the cross-examination and recross that followed, both sides debated Rothschild’s recognition for making the MetaBirkins, the involvement of developer Mark Design in creating them, using social media influencers to pump up the value of the Birkin-inspired NFTs, implications of ties to Hermès in text messages and the peak interest in the MetaBirkin community on Discord.
Drawing from thousands of texts that are part of the evidence in the case, one exchange where Rothschild was asked, “Is it official Hermès,” Rothschild responded, “pushing for it,” led to much discussion. The artist told the courtroom that “pushing for it” meant that he would try. Clement Kwan, who was then president of Yoox, had told Rothschild that he knew someone in the Hermès New York press team that he would try to put him in touch with.
One of the other livelier exchanges occurred when Rothschild was being cross-examined by Oren Warshavsky of BakerHostetler about his response to a Tweet suggesting he team up with People for the Ethical Treatment of Animals. Rothschild had indicated how that could lead to “blowback at T27,” (the Los Angeles art, fashion and event space that he co-owns with his fiancé Ericka del Rosario). Explaining that text Thursday, he said it was “just because PETA could be very aggressive.”
Warshavsky asked, “Could it also be because Terminal 27 sells calfskin products?”
“We sell leather products,” Rothschild said. Asked if calfskin and lambskin products are sold there, he said, “There could be.”
Later, while being questioned by his own lawyer about a message inquiring about “any good animal welfare groups,” Rothschild stated how he donated “a little less than $5,000” to the Best Friends Animal Society, (after receiving the cease-and-desist letter from Hermès.)
Ambre-Elise Binoche, social media and web listening director at Hermès International, also testified Thursday about the company’s social media strategy. She also touched upon how Hermès approaches social media (somewhat selectively compared to many major designer brands.) On average, Hermès posts on Instagram once a day, three times a week on LinkedIn and “less frequently” on its other social media channels. Binoche said she also works with the house’s creative team and art buying department to develop content. The latter is in charge of finding talent — artists, photographers, filmmakers, musicians and digital artists to create 3D animated NFTs among other things. “It’s important to collaborate with them,” Binoche said, adding that some partners are invited to create something with Hermès products.
In addition to showing a 3D post that was created by the artist Lucas Zannotto for Hermès, she also spoke of working with the interdisciplinary artist Neïl Beloufa. The latter, whose portfolio includes NFTs, had been invited and attended the annal Innovation Day in November 2021. The event is an internal one to inform employees of new technologies. At that time, Beloufa “was there to talk about his work in NFTs. His idea was to create a physical experience where someone takes a seat, uses a screen to talk to an animated horse and can turn that into a NFT,” Binoche said.
The trial is scheduled to resume Friday with Judge Jed Rakoff presiding.