Just when you think it’s over…it’s not. Hermès – the luxury handbag designer – and Rothschild – the creator to a Hermès Birkin bag NFT- are back in court. Readers may recall that back in February 2023, a New York federal court found that Rothschild infringed Hermès’ Birkin trademark by way of his MetaBirkins project which depicted the bags in colourful art.

The jury in the case awarded Hermès $133,000 in damages and a later ruling by U.S. District Judge Jed Rakoff  granted Hermes’ request for a permanent ban on sales of the tokens.

Now, a U.S. appeals court judge has expressed scepticism at the judgment, claiming the federal district judge may have instructed the jury improperly.

Senior U.S. Circuit Judge Pierre Leval stated that upholding Hermès’ win could prevent artists from incorporating famous brands into works like Andy Warhol’s Campbell Soup series, which could have the impact of precluding artists from making art whose ‘basic premise is to comment on some famous thing in commerce.’

Hermès claim that the district court ruling was correct because Rothschild’s use of the trademark was ‘a calculated effort to mislead consumers and capitalize on the Birkin brand’s immense value.’

In the lawsuit,Hermès referred to Rothschild (real name, Sonny Estival) as a ‘digital speculator’ and claimed the NFTs were a ‘get rich quick’ scheme that created the false impression that the fashion house endorsed his work. Rothschild had claimed that the works were an absurdist statement on luxury goods and immune from the lawsuit based on the U.S. Constitution’s First Amendment.

The appeal continues.