Overview:
Is the Wirkin infringing on the Birkin? How might consumer surveys be used if a dispute arose?
Birkin vs. Wirkin
The Birkin Bag is an iconic luxury handbag and signature fashion piece for the ultra-wealthy from French luxury house Hermes. New, the bags cost anywhere from around $15,000 to upwards of $300,000. They also have a robust resale value, and are sold in boutiques, some department stores, and online luxury retailers, among other places.
Walmart, by comparison, is an affordable retailer of groceries and home goods. On the resale portion of Walmart’s website, a third-party manufacturer, Kamugo, offers a leather handbag that resembles the Birkin. It is not called a Birkin, and it has no insignia related to or referencing Hermes. But it is shaped like the Birkin bag, and fans have nicknamed this “Walmart Birkin” the Wirkin.
The Wirkin bag is sold on the Walmart website for $80-125, and the bags were reportedly flying off shelves in December. If it’s shaped like a Birkin and has been dubbed a Wirkin by fans, can Hermes file trademark infringement and dilution actions?
Hermes Protections
Hermes holds trademarks for the name “Birkin” and the shape of the bag. The trademark registration describes the shape this way: “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 with 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 with 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.”
Other than the shape of the bag, the Wirkin does not include Hermes or Birkin marks, or have any distinguishing marks. However, it has a shape and enclosures that appear similar to those of the Birkin bag. Walmart has taken down the listings, but in the comments beneath listings for the bag, there were references to the Birkin shape by name, suggesting that consumers see a resemblance. Additionally, Walmart’s website hosts a market for secondhand goods, where authentic Hermes Birkin bags are sold used. Could Hermes recover lost market share?
How Likelihood of Confusion Surveys and Dilution Surveys Could Be Put to “Wirk”
If Hermes were to allege trademark infringement against Kamugo and Walmart, all sides of the dispute might be interested in submitting surveys showing–or not showing–evidence of consumer confusion. A likelihood of confusion survey could show whether and to what extent consumers believe the Wirkin was the Birkin.
Hermes might also bring a claim for trademark dilution, which covers both making it difficult to tell which source the mark is associated with and tarnishing a trademark by association with something undesirable. Because of the fame of the Birkin bag’s trade dress, particularly the bag’s shape, Hermes might believe that selling an inexpensive copy through a discount retailer tarnishes the brand or lessens its distinctiveness. A likelihood of dilution survey could make that case to a court.
Survey Strategy
MMR Strategy Group has conducted hundreds of likelihood of confusion and dilution surveys. If you require consumer survey evidence in a trademark lawsuit, contact us today.