New case on damages in the metaverse

BVWireIssue 245-3
February 15, 2023

economic damages & lost profits
damages, digital assets, trademark, infringement

An artist is liable for trademark infringement after creating and selling a series of non-fungible tokens (NFTs) that depict fur-covered purses resembling the iconic Hermès Birkin bag. The series of NFTs were called “MetaBirkens” and were sold on the blockchain. They initially sold for about $450 each, but the NFTs from the artist’s limited collection were bought for as much as $46,000 just two weeks later, according to a report in Tatler. The jury reached a verdict of liability for trademark infringement, trademark dilution, and unlawful cybersquatting on the domain name. They awarded Hermès the $110,000 of profits from the artist’s sale of the NFTs and $23,000 in damages for cybersquatting, according to a report in Lexology. The case is: Hermes Int’l v. Rothschild, No. 22-CV-384 (JSR), 2023 WL 1458126, at *1 (S.D.N.Y. Feb. 2, 2023).

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