THE US “METABIRKINS” CASE IN THE LIGHT OF EU IP AND CONSUMER PROTECTION LAW

Abstract

In early 2023 a United States (US) court ruled that a crypto art collection named “Metabirkins”, which depicts the famous “Birkin” bag of Hermès in several colorful motives, infringes the trademark rights of the fashion house on its signature accessory. This ruling conferred Hermès the power to ban the commercial exploitation of Metabirkins by their designer, through a permanent injunction order. By the time that order was issued, however, several Metabirkins had already been sold to third parties, allegedly for considerable prices. Taking this case as a point of reference, the paper at hand aspires to examine crypto art transactions from the perspective of EU intellectual property (IP) and consumer protection law. First, it clarifies the conditions under which the purchasers and licensees of Non-Fungible Tokens (NFTs) fall under the consumer concept. Subsequently, it examines whether the critical facts would constitute a trademark infringement in the EU legal order, and what would have been the impact of such an infringement on the rightful use of the controversial NFTs by their right-holders. Finally, the paper presents the rights granted by Directive 2019/770 to consumers in case they are supplied with digital content bearing legal defects, and comments upon their applicability and enforcement in the blockchain ecosystem. In this discourse, the paper takes a stand on the following contemporary issues: a) What is an “NFT artwork” from the perspective of EU IP law?, b) Is non-fungibility equal to originality?, c) Are NFT artworks subject to IP exhaustion?

Keywords

• crypto art
• trademark infringement
• digital content supply contract
• legal defect
• consumer protection