Maja Kozlowska
For some, the launch of the $78 Walmart Birkin ("Wirkin") rip-off was a meme-worthy moment that made rich people mad. For Hermès’, however, the increasing availability of knock-off Birkins is hurting the brand. Hermès customers are willing to pay north of $15,000 for a handbag because the Birkin represents wealth, status, and success. Without its status-signaling abilities, the Birkin will become like any other expensive bag. Importantly, although Hermès continues to outperform luxury brands in terms of revenue, they reported slowing revenue growth in Q3 for 2024.[1] Their ability to retain the aura of luxury and exclusivity surrounding their brand name could make or break future revenue streams.
The Wirkin that appears on Walmart’s online marketplace resembles the real thing in size, shape, and design but the Hermès’ name does not appear on the bag itself nor does the trademark-protected “H” logo. That will not get Walmart off the hook though. Hermès had foreseen the possibility of knock-off Birkins and secured rights in the Birkin bag trade dress. The trade dress protects the shape and design of the Birkin, including the dimpled triangular profile, the horizontal rectangular strap in the front, and the padlock at the center of the strap.[2]
Hermès could launch their legal attack against Walmart on two grounds: consumer confusion and trademark dilution.
The classic trademark infringement claim would focus on whether consumers are likely to be confused about the source of the handbag and/or Hermès affiliation with the knock-off considering its almost identical appearance. Some factors cut in favor of Hermès. Hermès would likely point to the robust resale market which makes consumer confusion more likely. Afterall, the Hermès store is no longer the only place one can get their hands on an authentic Birkin – The Real Real or Vestiaire Collective are just two of many resale platforms that offer authenticated bags. Thus, the argument follows, the average consumer might plausibly be confused as to whether Walmart’s marketplace does sell real Birkins. This point is further bolstered by the fact that there are third-party sellers operating on Walmart’s marketplace who hold themselves out as selling authentic Birkin bags.
Walmart, on the other hand, would stress the staggering price difference between the Wirkin and the real thing prevents consumer confusion. No consumer would think a bag that retails for $15,000 or more is offered on Walmart’s website for $78 a piece.
But Hermès has an even stronger claim in trademark dilution. Dilution occurs when a third party uses a famous trademark in a way that weakens its distinctiveness or harms its reputation. Here, there is no doubt that the reputation Hermès is trying to cultivate for itself is tarnished by a discounted supermarket like Walmart selling knockoffs of their bag.
Overall, Hermès has a strong legal basis to initiate takedown proceedings. Nonetheless, some damage to the brand image is irreversible once knockoffs gain attention in the popular media and push away the usual Hermès customers. It is crucial for Hermès to act quickly on this matter.
[1] Hermès International, Quarterly Revenue Report, Q3 2023.
[2] The Fashion Law, Is the Viral Birkin “Dupe” from Walmart Actually Legal?, The Fashion Law (Dec. 30, 2024).