Somebody made Hermès NFTs without Hermès’ permission and Hermès isn’t too happy

Here’s what happened: somebody created NFTs that represent Hermès Birkin bags without Hermès explicit permission, CoinMarketCap has covered this much better than I can so I’m not gonna get too much into the details, (apart from the fact that Mason Rothschild has made around 246 ETH from the sale of these NFTs), but I do wanna talk about what I think this bit of news entails.

According to the creator, this is designed as a ‘tribute’ to the famous handbag, but when it comes intellectual property rights, there’s no such thing as a ‘tribute’, and Hermès quickly (and predictably) said “these NFTs infringe upon the intellectual property and trademark rights of the company.”

This is obviously a lawsuit waiting to happen, that’s a no brainer, but it’s going to be interesting to see what is actually gonna happen, and how, and when. There are several things at play. First of all, trademark rights and intellectual property are all about technicalities. Sometimes all you gotta do is change a tiny detail and that alone could be potentially be enough to save you in the eye of the law.

Which brings us on the second thing worth mentioning: what does the law know about NFTs? The answer is not much. If John or Jane Doe were to create Hermès bags copycat, any judge would take about five minutes to make a decision and John or Jane Doe would lose the lawsuit, and would have to pay Hermès. But this is a digital product about which the law knows very little about. I’m assuming any presiding judge is going to start by saying “yeah what the heck is an NFT anyway?”

By definition, NFTs are immutable but I think that Hermès would (will?) still win the lawsuit, and Rotschild will perhaps have to pay Hermès for each NFT they sell. Or maybe they’ll end up working together. But either way, it sets a a precedent, and I think it’s interesting to find how.

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