By Matthew Russell Lee, Patreon Maxwell Book
SDNY COURTHOUSE, Feb 3 – 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:
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.
The trial will continue.
The case is Hermes International et al v. Rothschild, 22-cv-384 (Rakoff / Gorenstein)
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