Jury selection starts this week on a fascinating case that sits at the intersection of trademark law and the constitutional right to freedom of expression. French luxury brand Hermès, well known for its iconic Birkin bag, has sued a digital nonfungible token (NFTs) creator for creating and selling a series of 100 digital images on virtual marketplaces that depict the Birkin — a series of images the creator calls the "MetaBirkin."
While there are other similar cases pending in the court system, this case is the first of its kind to reach trial in the United States, and the case has been projected to provide more guideposts for dealing with NFTs. Hermès argues that the MetaBirkins constitute trademark infringement, dilute its brand, and confuse consumers while allowing the NFT creator to profit unlawfully off the goodwill of its luxury brand. On the other hand, the NFT creator argues that the MetaBirkin should be protected as an artistic expression and that a consumer could not possibly be confused between the "real" Birkin and a virtual asset.
The jury in this case will have their work cut out for them as they navigate applying existing law to new technologies in unchartered territory.
