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”, depictingthe famous “Birkin” bag of Hermès, infringedtrademark rights. 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. Taking this case as a point of reference, thispaper examinescrypto 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. Then, it examines whether the critical facts would constitute a trademark infringement in the EU, and what would have been the impact of such an infringement on the rightful use of the NFTs by their right-holders. Finally, the paper discussesDirective 2019/770 in protectingconsumersand itsapplicability in the blockchain ecosystem.