My Take on the “Wirkin Bag” Controversy

Unless you’ve been living under a rock, you may have missed that affordable retail conglomerate Walmart currently has handbags that greatly resemble the astronomically expensive Birkin Bag for sale on its website for $78.

It can cost from ten thousand to nearly one million dollars to cop a Birkin bag. As you can imagine, there is much debate about the ethics and optics of Walmart offering what is being called the “Wirkin Bag” at a much more accessible price point, since much of the exclusivity associated with the Birkin Bag is what drives the pricing of the bag.

As a Fashion Attorney, there are so many arguments and angles that we can point to when addressing this “Wirkin Bag” debate. We could talk about the fact that Hermés is currently under fire for its elusive and complicated requirements when it comes to who can actually purchase a coveted Birkin bag that goes beyond “can you afford it?" which has now resulted in an antitrust lawsuit. We can talk about the fact that Walmart is democratizing fashion by providing access to consumers who want the validation and experience of wearing what could be seen as an extremely expensive handbag (whether it’s the real thing or not).

There’s one angle that I’d like to focus on in this post, which is trade dress protection. Trade dress registration protects the commercial look and feel of a product or service that identifies and distinguishes its source. It includes the various elements (such as the design and shape of materials) used to package a product or service.

The way I like to describe trade dress is: When you see it, you know where it came from. This is aside from any specific words (trademarks) or logos (design marks).

Let’s face it, when you see a Birkin bag, you know it’s a Birkin bag. Birkin bags don’t say “BIRKIN” anywhere on them, but you know one when you see it…or so you thought.

We all know that the fashion industry is rampant with copycats, dupes, and knock-offs. This is usually completely legal and allowed in instances where there is no element of the article in question that is eligible for intellectual property protection, at least not in the United States. See my post on why fashion designs are usually not protected by U.S. law here.

Hermés, however, actually has trade dress protection in its Birkin design!

Back in 2011, Hermés registered the design of the Birkin with the following description:

The mark consists of the configuration of a handbag, having rectangular sides a rectangular bottom, and a dimpled triangular profile. The top of the bag consists of a rectangular flap having three protruding lobes, between which are two keyhole-shaped openings that surround the base of the handles. Over the flap is a horizontal rectangular strap having an opening to receive a padlock eye. A lock in the shape of a padlock forms the clasp for the bag at the center of the strap. The broken lines in the drawing represent the location of the handles and are not part of the mark.

By securing a registration in the overall aesthetic of the Birkin bag, Hermés could potentially go after those who create handbags that fit the description of the Birkin bag.

As of today, there has been no public or official action taken by Hermés to enforce its rights in its trade dress. This will be a strategic decision, as Hermés has built quite the reputation and quite frankly, an unquenchable thirst, for its Birkin bag that has allowed the price of its bag to soar. If Hermés decides not to enforce its rights against Walmart, it could result in the dilution of its brand and a devaluing in its crown jewel.

What is your take on the “Wirkin” Bag?

Were you aware that trade dress is an option for protecting certain elements of your designs? If you’d like to chat and build a strategy to protect your brand, feel free to schedule a quick chat with me here!