Hermes and Birkin NFTs

[needmoneyforbirkins]

Article: https://hypebeast.com/2022/1/mason-rothschild-metabirkins-nft-hermes-cease-and-desist-info

My boyfriend first showed me photos of these furry Birkin NFT's (named "MetaBirkins") a few weeks ago and now they're being taken off the marketplace after Hermes issued the creator a cease and desist letter. I've also seen other artists make art based on Birkins before (ex: Becky Rosa's Birkream statues) but I haven't heard of any legal issues encountered before.

Do artists have a right to create art based on brand trademarks and designs?

 

[QuelleFromage]

I don't think a trademark lawyer could find a way to defend this as long as it's named "MetaBirkins", but there might be room in parody and fair use legislation. Looks to me like the artist is trying to get H to work with him/her/them, since H isn't doing NFTs as yet, and is also working hard for some PR.
If the bag just appears in the artwork that is a different story.

 

[WhiteBus]

Are they functioning bags?

I can understand why a company like Hermes would object and challenge if it believed that it's products were devalued or degraded by what someone else created.
Can you copyright a surname? If a name is associated with a product can the combination of the two be copyrighted?

Would Hermes have issued the order against Damien Hirst or some other artist of that calibre?
It's quite low-cost advertising; a way if putting the brand in the public eye - nit that Hermes should need to do that.

 

[Ms Stressa]

I'm old enough to remember when "Jelly Kellys" were a summer trend and got a cease and desist.

 

[needmoneyforbirkins]

Are they functioning bags?

I can understand why a company like Hermes would object and challenge if it believed that it's products were devalued or degraded by what someone else created.
Can you copyright a surname? If a name is associated with a product can the combination of the two be copyrighted?

Would Hermes have issued the order against Damien Hirst or some other artist of that calibre?
It's quite low-cost advertising; a way if putting the brand in the public eye - nit that Hermes should need to do that.

no, they're NFT's so..kinda like digital art tokens? Not too familiar with crypto and NFT's myself

 

[haute okole]

Are they functioning bags?

I can understand why a company like Hermes would object and challenge if it believed that it's products were devalued or degraded by what someone else created.
Can you copyright a surname? If a name is associated with a product can the combination of the two be copyrighted?

Would Hermes have issued the order against Damien Hirst or some other artist of that calibre?
It's quite low-cost advertising; a way if putting the brand in the public eye - nit that Hermes should need to do that.

Hermes has a legal interest in going after anyone who tries to profit from Hermes’ name and likeness, whether the bag is functioning. Hermes should take the opportunity to create their own NFTs for the Metaverse, like Nike.

 

[krittershops]

My non expert legal understanding with trademarks is you have to show you take steps to ensure the integrity of your trademark. So let’s say they let these NFT MetaBirkins go unchallenged, in two or even ten years someone else makes up a pseudo-birkin “thing” they could challenge the trademark because Hermes did not take steps previously to protect it.

Hopefully that makes sense. It’s also why you see companies or celebrities send cease and desist letters or suing companies that make plays (even when it seems trivial) on their names or other registered content. Even when small or insignificant can impact future legal claims.

 

[jellyv]

Do artists have a right to create art based on brand trademarks and designs?

Creating is one thing, profiting off of it another. There's no inherent right to infringe on/commercially use legally protected IP, whether trademark or otherwise. This is where legal agreements kick in, or lawsuits will.

 

[QuelleFromage]

These aren't bags; the best way I can explain it is that they are digital art pieces based around Birkins, that are held on the blockchain, usually Ethereum, and because of this they are "certified" as unique art pieces.

There are many rights that would allow an artist to make art featuring a Birkin or any other item that embodies a trademark - let's say you make an art photograph intended to satirize wealth, in which someone is holding a Birkin - that would be acceptable use; focusing solely on the Birkin and using its name in your sales pitch is probably crossing lines; in any case there's very little precedent for this in NFTs specifically.

I am a little surprised H hasn't gone into NFTs, but then again, their website still barely works, and they've never let me pay with Bitcoin

 

[WhiteBus]

My non expert legal understanding with trademarks is you have to show you take steps to ensure the integrity of your trademark. So let’s say they let these NFT MetaBirkins go unchallenged, in two or even ten years someone else makes up a pseudo-birkin “thing” they could challenge the trademark because Hermes did not take steps previously to protect it.

Hopefully that makes sense. It’s also why you see companies or celebrities send cease and desist letters or suing companies that make plays (even when it seems trivial) on their names or other registered content. Even when small or insignificant can impact future legal claims.

Thank you. That makes a lot of sense.

 

[jmen]

The pics I saw of the NFT “birkin” did not look as “birkiny” as any knock off. I liken it to a car company rippping the shape of a car and getting a cease and desist order issued to block the sale of all other cars because it looks like a car, has wheels and tires, etc. First thought after seeing the NFT “birkins“ was you’ve got to be kidding me; what a reach!

 

[cravin]

This thread really has me wondering whether Hermes will get into NFTs for the utility piece of owning one. They have expressed interest in engaging with younger clientele and this would be a great way of reaching out. Sell an NFT of a bag, scarf, shoes, whatever and the utility piece of owning it would be that customer getting to buy a physical version of this limited item. I know Gucci is going this route, but will be interesting to see whether Hermes would think that this route is too cutting edge.

 

[jmen]

Imagine Hermes goes down the rabbit hole (NFTs), how would they price such items? AND will there be the spend game that exists in the real world?
Squid Game: red light/green light, bang — snagged your birkin when you fell. Will there be insurance available for NFTs?

 

[cravin]

Imagine Hermes goes down the rabbit hole (NFTs), how would they price such items? AND will there be the spend game that exists in the real world?
Squid Game: red light/green light, bang — snagged your birkin when you fell. Will there be insurance available for NFTs?

This is why I'm wondering whether they'll go into it. Hermes knows that the quota bags are in higher demand than what they sell (reseller market being strong, reason why they can get you to buy stuff before offering one, etc.). What I could see Hermes doing would be selling 500 NFTs of a Special Order Birkin of a select color mix. Each of these NFTs could be $2,500. The person that buys the NFT doesn't actually OWN this Birkin, they own the NFT of this Birkin. That's where the utility piece comes into play. If you're a person that purchased said NFT, you would be able to submit an actual order for the physical version of this Birkin for $13k.

Obviously this is purely hypothetical, but it would be interesting.

 

[jmen]

This is why I'm wondering whether they'll go into it. Hermes knows that the quota bags are in higher demand than what they sell (reseller market being strong, reason why they can get you to buy stuff before offering one, etc.). What I could see Hermes doing would be selling 500 NFTs of a Special Order Birkin of a select color mix. Each of these NFTs could be $2,500. The person that buys the NFT doesn't actually OWN this Birkin, they own the NFT of this Birkin. That's where the utility piece comes into play. If you're a person that purchased said NFT, you would be able to submit an actual order for the physical version of this Birkin for $13k.

Obviously this is purely hypothetical, but it would be interesting.

Don’t ya think it might go buy a H birkin, etc for the price of the tangible one and then you can have access to the real thing. When I was young, I was gullible. Now that I have wandered the road for a long stretch, capitalism is alive and well. Too skeptical or too much of a realist now.