By Matthew Russell Lee, Patreon Maxwell Book
SDNY COURTHOUSE, Feb 24 – Hermes has sued Mason Rothschild for using its Hermes Birkin name to market an NFT, MetaBirkins. Just added "meta" changes nothing, it says.
On April 8, U.S. District Court for the Southern District of New York Magistrate Judge Gabriel W. Gorenstein held a proceeding. Inner City Press covered it.
Judge Gorenstein said that all fact discovery must be completed by August 9.
The parties say a trial would take five days.
On May 4, after the case was reassigned from Judge Alison J. Nathan, now on the Second Circuit, to Judge Jed S. Rakoff, an oral argument was held by Judge Rakoff. Inner City Press covered it. The defendant argued that its products are art.
Jump cut to November 18, 2022, with Judge Rakoff's courtroom and jury box nearly full for an oral argument in the case. Inner City Press went and covered it here and below.
On February 8, 2023, in the third day of jury deliberation, the verdict came in for Hermes, on trademark, dilution and cyber-squatting with no First Amendment defense found, $133,000 in damages.
On February 24, Judge Rakoff granted Mason Rothschild's motion to brief on interviewing jurors: "Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference with both parties counsel present held on 2/24/2023, without transcription or recording. Further to this conference, first, the defendant is granted leave to file an opening brief on the issue of interviewing the jurors. The defendant should submit that letter brief, exceeding no more than five pages, by March 3, 2023. The plaintiffs have one week -- until March 10, 2023 -- to respond. Both parties may file these materials under seal. Second, Plaintiffs are also granted leave to file a motion for a preliminary injunction by March 3, 2023, and the defendant will have until March 10, 2023 to reply to such motion. Third, The application to delay adjudication of the attorneys fee issue until an appeal has been completed or the possibility of an appeal extinguished is granted. Fourth, the following schedule for the filing of post-trial motions is granted: March 14 for the filing of any motion, March 28 for responses to the motion(s), and April 4 for any reply papers regarding the motion(s)."
From November 18, 2022: Hermes lawyer is presenting his view of 2d Circuit's "Welcome to Twin Peaks" decision.
Judge Rakoff says readers of NYT and WSJ sould temper that with the New York Post. Counsel quips, At least for the sports section.
Judge Rakoff: My knowledge of the Metaverse is limited. But how can one wear this bag in the Metaverse? I'll send my next opinion not to the 2d Circuit but to the Metaverse. People are buying NFTs. I hope they are not using crypto currency
Hermes' lawyer says these NFTs can *only* be bought with crypto currency, notes that 'in lat ten days thos market has cratered" - but no direct mentoon of FTX
Wait- Hermes lawyer now does say FTX, calls customers 'less than sophisticated."
Lawyer for Mason Rothschild decries a "blizzard of red herrings."
Lawyer: Beyonce has sung about Birkin bags. It part of our culture. It is political.
Judge Rakoff: Buy the Meta-Birkin exposes the hollowness of weath?
Lawyer: Well, it is covered in goofy, garish fake fur. It's like Andy Warhol.
Judge Rakoff: So your client will donate his earnings to the poor? Lawyer: Well, he has a project about climate change
On December 30, Judge Rakoff ruled: "trial of this case will commence on January 30, 2023."
On January 30, Judge Rakoff chided counsel for not asking the witness he did allow - not the proposed and rejected Warhol witness - how much Mason Rothschild made from the NFT.
Others are making money too. On February 3, Hermes put up a witness by video from Harvard: Professor Scott Kominers who said he teaches Web 3. He had charts showing the comparative sales of NeoTokya Citizen and Mobland - no, not "bland" - and acknowledged or bragged on cross that he charges Hermes $2000 an hour for testimony. NFTs and crypto may be down, but for the experts, every dispute is a payday.
Mason Rothschild before SDNY Judge Rakoff, courtesy to Inner City Press by Elizabeth Williams
On February 1, Mason Rothschild was on the stand. Inner City Press live tweeted, thread here
Rothschild on witness stand, about "this new NFT Web3 space."
Jury is shown NFT of "floatees" as VIP ticket in Miami. Describes designing F-1 helmet for race in Abu Dhabi, says the Empty Quarter is there.
Now Mason brags about Weirdo 4100, sold 10,000 at .08 ETH on OpenSea - "it's like Mister Potatohead."
Note: Corporate lawyers staring at video monitors. Somehow reminiscent of Tekashi #6ix9ine
Now a sidebar about Hermes-branded rocket. Mason slumps down in witness chair.
In the docket are Rothschild's arguments that his MetaBirkins are creative expression protected by the First Amendment and by well-settled 2d Circuit law. He cites Rogers v. Grimaldi, 695 F. Supp 112 (SDNY 1988). He says Hermes is permissive so long as the point of the art is not to draw unwanted attention to the absurdity of luxury handbags.
On February 6 in closing arguments, Mason Rothschild's lawyer said, as live tweeted by Inner City Press here:
Mr. Rothschild made clear in the Discord channel to say he was responsible for MetaBirkins, anyone could message him. He polled his members what to do next with his art project. Mr. Rothschild when he saw the project mis-attributed, he reached out
Mr. Rothschild could have charged more for the MetaBirkins. It was an artistic experiment. He wanted to see what kind of value people would ascribe to these two dimensional pictures.
It is unlikely that people who would pay thousands of dollars on bags would be confused these MetaBirkins were from Hermes. He has a Constitutional right to create his MetaBirkins art work, and to make money from, as long as he doesn't mislead people
Our Constitution is not self-enforcing. It is up to you, to protect the First Amendment. Thank you so much.
At 4:30 pm the jury, through foreperson Juror Number 8 (named in court) asked to know when Hermes applied for a digital trademark.
Judge Rakoff drafted a note that it is not in evidence and therefore cannot be furnished, to be delivered to the juror on the morning of February 7.
On February 7, the jury seemed to be getting closer, based on its questions which Judge Rakoff called "over-interpreted." By 3:34 pm he and the lawyers left, but the jury remained deliberating (with no questions or verdict possible for the day). Inner City Press live tweeted, here:
OK - in Hermes v. Mason Rothschild on MetaBirkins, jury mid 2d day of deliberations has sent out a note, If they are unanimous on 1st three counts but can't decide on 1st Amendment, then what?
Judge Rakoff: I'll tell them, then you keep deliberating.
Judge Rakoff, to Mason R's counsel: I think you are over-interpreting the secret deliberations of the jury, based on this note.
Now as Mason Rothschild's three lawyers confer, Judge Rakoff says, I was supposed to have lunch at 1 pm with Judge Rochon, let me go tell her we'll have to re-schedule.
Update: Judge Rakoff held a sentencing, after which he and now the Hermes v. Mason Rothschild lawyers have left. But deliberations continue - it's that, no questions can be answered, nor verdict rendered, today.
On February 8, 2023, in the third day of jury deliberation, the verdict came in for Hermes, with no First Amendment defense found, $133,000 in damages. More to follow.
Inner City Press will stay on the case.
The case is Hermes International et al v. Rothschild, 22-cv-384 (Rakoff)
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