Despite the MetaBirkin creator’s assertion that his project is safeguarded under the first amendment as an artistic expression, the defense was ultimately unsuccessful.

French haute couture brand Hermès has scored another victory in its infringement lawsuit against artist Mason Rothschild, as a United States judge issued a perpetual injunction on all sales of “MetaBirkin” non-fungible tokens (NFTs).

Hermès initially presented the injunction request to the U.S. District Court for the Southern District of New York in March, seeking to cease all sales of the MetaBirkin NFTs.

On June 23, U.S. Judge Jed Rakoff, based in Manhattan, officially authorized the request. He cast doubt on Rothschild’s defense against Hermès’ suit, scrutinizing Rothschild’s ongoing promotion of the project.

Judge Rakoff stated that Rothschild’s entire ploy was to mislead consumers into presuming that Hermès was endorsing his profitable MetaBirkins NFTs by using variations on Hermès’ trademarks. He added, “No aspect of the First Amendment protects him from responsibility for such a scheme.“

The MetaBirkin collection encompasses 100 NFT artworks portraying fluffy Birkin-style handbags. Rothschild reportedly amassed over $1 million in sales from the project.

The legal battle originated in January when Hermès accused Rothschild’s NFT collection of unauthorized use of its Birkin trademark, creating an impression that the brand endorsed the project.

In February, the court declared that Rothschild had infringed on Hermès’ trademark following a verdict by a nine-member jury. The artist was instructed to pay $133,000 in damages.

Rothschild contended that his project was a form of artistic expression secured by the first amendment, drawing parallels to Andy Warhol’s lawful creation and sale of art featuring Campbell’s soup cans.

Furthermore, the artist claimed that he had not explicitly deceived consumers, as he had furnished disclaimers stating Hermès’ non-involvement.

However, the judge and jury dismissed this, focusing on the use of the word “Birkins.”

The court document reads, “The jury determined that his choice to use Hermès’ trademarks in the name and design of the MetaBirkins NFTs — not just his marketing and sales strategies — was explicitly misleading and dismissed his disclaimer defense.”