Another Birkin? Trade Dress in the Context of Walmart’s Wirkin Controversy.

For over 40 years, the Hermès Birkin Bag has served as an iconic status marker. The Birkin is a handstitched leather bag ranging from $10,000 to $400,000 on resale sites. Recently, Walmart was scrutinized for offering a Birkin dupe for a fraction of the cost. While some (incorrectly) view this as making fashion accessible, there large implications under trade dress laws. This article explores the concept of trade dress while addressing some responses to the Walmart Birkin.  

 

An Overview of Trade Dress 

 

Trade dress is the overall look and feel of a product that serves as a source identifier – it functions as a subcategory of trademark. Essentially, it helps consumers immediately recognize a product comes from a specific manufacturer. Examples of well-known trade dress include Christian Louboutin’s red soles, Tiffany & Co.’s blue box, and the Coca-Cola glass bottle shape. Trade dress is only protected if it has acquired distinctiveness, meaning it has risen to the level where consumers recognize it as a brand.

 

There are two types of trade dress: product packaging and product design. Product packaging trade dress typically covers the combination and arrangement of the packaging’s design elements. Product design trade dress considers the actual product’s shape, configuration, or design features. It protects the actual aspects of the feel and appearance of a design, but not any elements of functionality.  

 

What is the “Wirkin?” 

 

The Wirkin -- a fusion of “Walmart” and “Birkin” -– gained attention on TikTok over the holidays. Featuring a similar lock-and-key design, same shape, and similar handles, the bag was nearly identical to a Birkin. Multiple retailers sold the Wirkin on Walmart’s website for $60 – 80. However, as of January 31st, it is no longer available for purchase online. 

 

Responding to Online Comments About the Wirkin 

 

QUESTION: Is Hermès actually harmed by the Wirkin? 

ANSWER: Counterfeit products damage a brand financially and reputationally, regardless of its luxury status. The Birkin design is protected under trade dress law and is registered under USPTO Reg. No. 3936105.

USPTO Reg. No. 3936105

Some, but not all, Birkin bags feature a Hermès logo above the lock. The Birkin’s design has acquired secondary meaning because consumers immediately associate it with Hermès.  Over time, dupes may diminish the value of the Birkin to everyday buyers. 

 

QUESTION: Will a Birkin’s investment value be affected as lower-cost alternatives enter the market? 

ANSWER: While increased availability can lower the demand for commodities, luxury items like the Birkin are different. Dupes and luxury items are not comparable. Luxury items are made with high-quality materials and built to last, while dupes are meant to be affordable and disposable. A Birkin was never meant to be widely accessible and consumers pay for the quality and care of the item. Since luxury items gain value from exclusivity and craftsmanship, Birkin bags will likely always be considered an investment. The real risk lies in the potential dilution of the Birkin's design and Hermès' brand identity. 

 

QUESTION: How is luxury fashion like the Birkin different than fast fashion?

ANSWER: Though fast fashion produces cheap, trendy garments, it causes major environmental and human rights issues. To be priced cheaply, the product must be cheap to make. Countries with relaxed labor laws rely on child labor and forced labor. In 2018, Bangladesh’s minimum wage for garment workers was 8,000 taka, or $65.73, a week. In contrast, a Birkin bag takes at least 18 hours to handcraft, with each bag marked by the artisan’s code, and Hermès limits clients to two per year, emphasizing quality over quantity. 

 

Key Takeaways:

It's important for brands to monitor online to ensure they stop fake products, because even luxury brands could be harmed financially and reputationally if there is a big enough problem in the marketplace.