Is The Viral Birkin “Dupe” From Walmart Actually Legit?

“Fashionistas clamor to get their hands on a ‘Walmart Birkin,’ aka a “Wirkin,” New York Post reported this weekend, referring to an inexpensive handbag that resembles Hermès’ most sought-after offering. Ranging from $78 to $102 depending on the size of the bag, the “Walmart Birkin” has gained viral status online, so much so that it sold out on the retail giant’s website on more than one occasion. Both TikTok users and the media have been quick to label the bag a “dupe”, a term that typically refers to legally superior products that replicate the appearance of high-priced goods—without all legally protected elements. But is the “Walmart Birkin” actually in the clear from a legal standpoint? Probably not.

A version of the Birkin bag offered on Walmart’s e-commerce marketplace (via a third-party seller) does not use the Hermès name itself on the bag; on a genuine Birkin, the Hermès name appears on the body of the bag under the flap, inside the bag and on various hardware. At the same time, the discount replica also does not copy Hermès’ trademarked “H” logo, which appears on the clasp of an authentic Birkin bag. Yet the listing for “Genuine Leather Handbags Purse for Women Tote Shoulder Bag” from a third-party seller named KAMUGO, for example, does not use the Hermès name or the “Birkin” wordmark.

> Other offerings, such as one from third-party company Sulikehz, use the “Birkin” and “Hermès” wordmarks, raising potential trademark issues.

The KAMUGO-made bag and others like it are almost certainly still in violation of the law because the appearance of the Birkin bag itself is protected – with or without the inclusion of the Hermès wordmarks. Yes, in addition to its rights in the BIRKIN name, Hermès has a monopoly of sorts in the bag’s distinctive shape. In other words, Hermès has the rights to the Birkin handbag, which consists of…

“The configuration of a handbag having rectangular sides, a rectangular bottom and a triangular profile with recesses. The top of the bag consists of a rectangular flap with three projecting tabs, between which are two keyhole-shaped openings that surround the base of ​​​​​​​Above the flap is a horizontal rectangular strap with an opening to receive a padlock eye ​​the strap” … for use on handbags.

With the above in mind, the question becomes a confusing one. If Hermès were to file a trademark infringement claim against KAMUGO (the company behind the bag) for offering it for sale and selling it and Walmart for facilitating its sale, the critical inquiry would be whether consumers are likely to be confused as to the source of the bag’s handbag and/ or Hermès affiliation/endorsement of the bag in light of its almost exact appearance. There are several factors that would weigh in Hermès’ favor in such an analysis; beyond the strength of Hermès’ Birkin trade dress and the obvious intent to capitalize on the appeal of/demand for the Birkin bag, there is the fact that third-party sellers are offering purportedly authentic Birkin bags on Walmart’s marketplace.

A quick search on the e-commerce platform reveals that dozens of potentially authentic, pre-owned Birkins are available for purchase for $15,000-plus price tags. This could allow Hermès to bolster its hypothetical trademark infringement claim by arguing that consumers are more likely to be confused since there are (potentially) authentic Hermès bags available on Walmart’s website.

On the other hand, Walmart and the third-party sellers could highlight the glaring difference between the price tags of the allegedly infringing bags ($100 or less for) with the price tag of real ones, which routinely sell for $10,000 or more on the secondary market, to maintain that consumers are unlikely to confuse the two. In addition to the vastly different prices of the bags, the hypothetical defendants could also presumably argue that the marketing and distribution channels for genuine Birkin bags and the allegedly infringing ones are vastly different, weighing against the likelihood of consumer confusion. This is where Hermès could at least partially counter, pointing to the robust resale market for its most sought-after bags and the resulting lack of clear lines between previously separate distribution channels.

Regardless of the outcome of an infringement claim, Hermès would also have a dilution case on its hands given the level of fame of its Birkin bag merchandising dress. Unlike trademark infringement, which centers on the likelihood of confusion, a trademark dilution claim allows the owner of a truly famous trademark to preclude unauthorized use of that mark, regardless of whether consumers may be misled as to its source in order to prevent a diminution of its trademark. distinctiveness or tarnishing of the goodwill associated with the mark.

Chances are, in the wake of widespread media attention about the fake Birkins being offered on Walmart’s marketplace, the listing will disappear. Hermès will no doubt initiate takedown procedures with Walmart. As for whether it will take action against the individual sellers, many of whom appear to be based in China and/or Walmart, to prevent future sales and/or seek damages, stay tuned.