MetaBirkin NFT Appeal Feels Jack Daniel’s Case Ripple Effect (1)

A Second Circuit panel on Wednesday questioned how the 2023 Supreme Court ruling restricting the applicability of a First Amendment test for trademark use affected a jury’s verdict that NFTs depicting Birkin bags infringed Hermès International SA’s trademark rights.

The Supreme Court last year in Jack Daniel’s Properties v. VIP Products ruled that using another’s trademark as your own source-identifier isn’t protected speech. The high court’s decision limited a free-speech balancing test established in the 1989 case Rogers v. Grimaldi, which said artists can use a trademark as long as it’s artistically relevant and doesn’t explicitly mislead consumers.

“Isn’t ...