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News blog19 May 2022European Innovation Council and SMEs Executive Agency2 min read

“Le Quasi-Retour de Gaston Lagaffe” - Updates On “Metabirkins” and “Nike vs StockX” cases

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METABIRKINS

An update on the “MetaBirkins”, a case that we talked about in our previous article “Intellectual Property in the Metaverse. Episode 2: Trade Marks”. In a nutshell, the artist Mason Rothschild created a collection of Non-Fungible Tokens (NFTs) of handbags called “MetaBirkins”, that depicted Hermès’ iconic “Birkin” bags. These NFTs containing Birkin look-alike bags, were being commercialised in the Metaverse. Rothschild was sued by Hermès for trade mark infringement, even if the artist claimed that his work could not be considered as trade mark infringement, since the NFTs were artistic representations of imaginary “Birkins”, not real ones. 

Now, the U.S. District Court for the Southern District of New York decided that the lawsuit can move ahead, and rejected Rothschild’s claims to dismiss the action. Therefore, it is expected to have soon an outcome on one of the first legal disputes originated in the Metaverse. 

 

NIKE AND STOCKX 

Last February, Nike sued for trade mark infringement the marketplace StockX, for selling NFTs with Nike’s logo. 

More recently, Nike allegedly purchased four pairs of shoes on StockX, that were apparently certified by the marketplace as authentic items. However, Nike claimed that these were counterfeit sneakers, which could consequently cause dilution to Nike’s trade mark and were deceiving for consumers. 

For this reason, Nike requested the Court to amend the complaint, including the alleged practice of selling counterfeit versions of the shoes.

More information about this legal dispute can be found in our previous blog posts here and here.

 

“LE QUASI-RETOUR DE GASTON LAGAFFE”

Éditions Dupuis, the Belgian publisher of comic albums, made an attempt to bring back to life one of the most emblematic comic characters in French speaking countries: Gaston Lagaffe. 

Lagaffe was created by the designer André Franquin, who passed away back in 1997. 

Before his death, Franquin assigned his economic rights over Lagaffe to Marsu Productions, which in turn sold them to Dupuis in 2013.  Franquin signed an exploitation contract of his character in favour of Marsu Productions. One of the clauses specifically stated that the author, or his heirs, could prevented any form of adaptation of his work, on artistic or ethical grounds. This clause also applied to new works. 

Nevertheless, as a consequence of a tribute made to Franquin, the Canadian designer Delaf recreated the character of Lagaffe in such a perfect manner that the publishing house Dupuis offered to continue the saga of the comic. Dupuis considered that comics that do not have a sequel, tend to disappear and for this reason, decided to publish a new album called “Le Retour de Lagaffe”

However, the daughter of the cartoonist, Isabelle Franquin, who currently owns the moral rights to the character, opposed to this remake and brought an action before the Belgian Courts, as she considered this project as "illegal" and demanded the "urgent and provisional suspension of any pre-publication, promotion or distribution of the new cartoons". 

The Belgian court upheld Isabelle’s request to suspend immediately any publication or promotion of the comic, but they will have yet to determine which of the two parties has the right to decide on the publication of the “new” Lagaffe. 

From its side, Dupuis already announced its intention to halt the publication of the comic, but they claim that the opposition based on ethical or artistic concerns in relation to the adaptation performed by Delaf is not applicable in this case. 

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