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NY NFT Trademark Lawsuit by Hemmes regarding Birkin bag NFT art

A decision from Judge Rakoff from the SDNY regarding a motion to dismiss in a case involving NFTs.  See https://images.law.com/contrib/content/uploads/documents/389/164932/Hermes-v.-Rotschild.Rakoff-order-on-MTD-1.pdf

 The court denied the motion to dismiss.

Mr Rotschild, the defendant, created a digital image of the Hermes Birkin bag, with a baby fetus inside the bag.  It sold for $23,500.  He also created images of faux fur Birkin bags, and 100 numbered NFTs that sold for about the price of a real world Birkin bag.

Hemmes sued Rotschild for trademark infringement.  Rotschild says the NFTs are art that have First Amendment protection.  He also said that his use of MetaBirkin for the title of his art had First Amendment protection.

The court said that there were too many factual issues to determine (e.g. is the NFT art?) to dismiss the case against Rotschild without having a trial.

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