If you’re “wirkin” to save up the money for a BIRKIN bag, you may be waiting a long time. And it may be just as hard to get an imitation version, based on the recent shutdown of a couple of foreign manufacturers’ attempts at selling what has been dubbed the “Wirkin” by consumers on Walmart’s website.
After Guangzhou Kuai Trading Co., Ltd (“GKT”) and Shenzhen Xinchuanglihe Technology Co., Ltd (“SXT”) developed and began selling bags with a similar look and feel to Hermès International’s (“Hermès”) legitimate BIRKIN-branded design, consumers took to social media to point out similarities between the bags.
A BIRKIN bag can start at about $20,000 and is only available for purchase at Hermès stores, unless purchased second-hand. Authentic BIRKIN bags are not only expensive – they are exclusive. BIRKIN bags are typically available for purchase only by those with an existing relationship with Hermès, and such individuals are invited to purchase them at Hermès stores. In comparison, a so-called “Wirkin” is priced around $100 and was made available on several websites.
Although GKT’s bags were marketed under the trademark AIDRANI, and SXT’s bags were marketed under the trademark KAMUGO, the combination of visual design elements in the bags were quite similar to those protected under Hermès’ incontestable federal trade dress registration (U.S. Trademark Reg. No. 3936105), appearing as follows:
The “Wirkin” listings appear to have been removed from Walmart’s online platform, but those bags, and similar bags, have been listed on other sites. It is unclear whether removal from Walmart’s site was the result of legal action. But we do know that Hermès has shown it’s not afraid to enforce its intellectual property rights in other cases.
Hermès recently won a jury verdict against an artist selling NFTs called “MetaBirkins.” Hermes International v. Rothschild, U.S. District Court for the Southern District of New York, No. 1:22-cv-00384. The MetaBirkin NFTs were digital images of faux fur-covered handbags inspired by Hermès’ iconic BIRKIN-branded bag. The artist who created those images, Mason Rothschild, has been permanently enjoined from copying Hermès’s design.
It’s commonplace for fast fashion brands to imitate designers, and it can be difficult for designers to prevent copycats under copyright law. But perhaps Hermès has found a way around that by using trademark law to protect its design as a source-identifying mark. Hermès wisely sought protection for its bag beyond its BIRKIN word mark. Had it not, it could be workin’ even harder to shut down the Wirkin.