Hermès victory over MetaBirkin reminds creators they need to be 'mindful of using other people's content'

International law firm RPC says decision should not be seen as an impingement on artists, but rather a reminder that intellectual property laws apply even in the metaverse

Following Hermès' victory in the New York courts against the digital artist behind MetaBirkin, which featured the digital representation of Hermès' Birkin handbags as NFTs, Josh Charalambous, Sports, entertainment and IP partner, and Ciara Cullen, Retail & Consumer Group partner, at international law firm RPC, said:

"Trade mark laws are applied differently around the world, and Hermès' victory came after a jury trial in the New York courts – so the case doesn't set a legal precedent which can be relied upon and enforced around the world on its own, and on its face, it should have no or little bearing on the decision making of Judges in England for example, or in Europe, if another brand were to take similar action.  

"But make no mistake:  this is a victory for brand owners across many sectors – both for retail and consumer brands, and also recognisable sports and entertainment brands, many of whom are pro-actively considering how best to protect their reputation, goodwill and branding as we see more use cases for Web 3.0 technologies.  

"The decision brings issues relating to brand protection to the forefront of minds when it comes to NFTs – and it raises the awareness of creators that they do need to be mindful of using other people's content and branding.  

"This is important because it is much easier for brand protection teams if they can deter people from creating potentially infringing items at all, and high-profile legal cases such as this can make all the difference in reminding creators of the need to be aware of intellectual property rights of others.  

"This point extends beyond NFTs, to have broader application and impact, including brand protection and enforcement in the metaverse(s) – especially those metaverse(s) where we might want to dress our avatars in digital versions of Nike or adidas trainers, replica football shirts bearing the logos of our favourite teams, or our favourite designer clothing – or where brands might want to advertise consumer products on digital assets.  

"It is also a timely reminder for NFT creators – and purchasers of NFTs – that there is a sophisticated set of legal principles already in place which can be applied to works that they create.  

"Much like the boom in digital content online, the law does have a way (and a long history) of being moulded to new technologies, and so it would be a misstep for creators to think that these can be ignored.  

"However, the decision should not necessarily be seen as an impingement on artists or creators – the point really is that intellectual property laws that already exist are simply continuing to be applied.  

"The exciting opportunities created by different media, including NFTs and digital assets in the metaverse(s) (current and future), are enormous – but that does not mean that they will be unrestricted."