Is Walmart’s Birkin knockoff legal?
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Is Walmart’s Birkin knockoff legal?
It comes in the familiar trapezoidal shape, bears a lock and key, and retails for around $100 or less.
Walmart Birkins, or Wirkins, if you will, are Hermes Birkin look-alikes, but they’re a small fraction of the price. The real luxury handbag generally goes for between $17,000 and $200,000. When it comes to the Wirkin, no prior receipts are required. Last year, consumers filed a proposed class-action lawsuit against Hermès, claiming that the French fashion house will sell the item only to those with “a sufficient purchase history.”
Over the past week, shoppers have posted TikTok videos in which they unbox their Wirkins or jokingly flaunt them in public. Multiple third-party companies have been making Birkin look-alikes, including brands like Kamugo and Bestspr, although their listings are no longer available on Walmart’s site. Shoppers were able to find bags priced between $66 and $102.
Younger generations in particular gravitate toward dupes, with 71% of Gen Zers sometimes or always buying cheaper knockoffs of in-demand goods, according to a 2023 survey from Business Insider and YouGov.
While fans have dubbed the purse the Walmart Birkin, these sellers aren’t explicitly invoking the elite name. The similarities between the two bags raise the question of whether it’s even legal to sell the Birkin knockoff.
Generally, companies have some latitude in designing products that share similarities with other items already on the market. “Under U.S. law, designs are not in and of themselves protectable,” said Douglas Hand, a fashion lawyer.
“What is protectable is copyright, certain design elements under what’s called a design patent, and trademark,” Hand said.
For example, sewing the Hermès label into the bag would be considered trademark infringement, while duplicating a fashion house’s hand-produced artwork would be considered infringement if it’s been copyrighted, Hand said.
But functional elements are not protectable, like the handle of a bag, Hand said.
While companies can get a design patent, they last only 15 years. “We do have design patents for the shapes of things, how things look as opposed to how they work,” said Sarah Fackrell, a professor at Chicago-Kent College of Law. “You’re supposed to get a limited amount of time, and then it belongs to the public.”
Design patents are supposed to reward or incentivize people to create new products, Fackrell said. But what complicates this issue is that you can trademark shapes. And unlike a design patent, a trademark can last forever, Fackrell said.
“Trademark law is about two things. It’s about preventing consumer confusion and protecting the investment made by brands,” Fackrell said.
In the past couple of decades, the courts have “allowed brands to basically recapture product designs from the public domain using trademark law,” Fackrell said.
“So Hermès does have some trademark registrations relating to the Birkin bag, including the shape, including the little lock strap thing in the front. Based on this, they can enforce those registrations against anyone who makes confusingly similar uses of those marks,” Fackrell said.
“If someone is confusing consumers as to the source, sponsorship or approval of the bags, they would have a valid trademark claim against them,” she added.
High-end fashion brands are no stranger to collaborations with big-box stores like Target, which has released collections from designers like the late Alexander McQueen, Prabal Gurung and Anna Sui. But unlike those projects, the Wirkin is not a collaboration between Walmart and Hermes.
Nevertheless, if consumers assume Walmart is working with Birkin and think these bags are authentic, that could support the argument that marketing them amounts to “trade dress” infringement, Hand said. (Trade dress is a type of trademark that protects the product’s look.)
Legal or not, shoppers are clamoring for high-fashion knockoffs. Rising prices and high interest rates have made luxury goods even less affordable, giving rise to a burgeoning dupe market.
Consumers feel like the knockoffs grant them the same status that comes with owning luxury products — without the exorbitant prices, Hand said.
“We have seen a consumer that kind of feels a little duped by purchasing a real version of a luxury brand item because the price point is so high, and actually kind of revels in the opportunity to purchase an item that they feel is the same.”
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