A limited edition of inexpensive handbags, dubbed the “Walmart Birkin” or “Wirkin,” has gained viral status for mimicking Hermès’ iconic Birkin bag. Priced between $78 and $102, these bags have repeatedly sold out online. Despite not featuring Hermès branding or logos, the replica’s design closely resembles the original, raising potential legal challenges.
Hermès holds rights to the Birkin bag’s trade dress, a legally protected design encompassing its distinctive shape and configuration. This protection applies even in the absence of the Hermès name or logo. The likelihood of consumer confusion, particularly given Walmart’s marketplace offerings of pre-owned authentic Birkins priced over $15,000, strengthens Hermès’ case for trademark infringement.
While Walmart and third-party sellers might argue price disparities and different distribution channels to dispute confusion claims, Hermès could counter with evidence of a robust secondary market blurring these distinctions. Additionally, Hermès may pursue a trademark dilution case, emphasizing the need to protect the Birkin’s fame and distinctiveness.
In response to the media coverage, Hermès is likely to demand takedowns of infringing listings. The fate of lawsuits against sellers and Walmart remains uncertain, but Hermès appears poised to protect its iconic bag’s reputation.
