Recently, a bag that closely resembles the iconic Hermès Birkin has appeared on the website of the American supermarket chain Walmart. The main characteristics of the Walmart bag are its low price and wide availability, which characteristics are not inherent in the iconic Hermès Birkin. However, from the point of view of intellectual property rights, the question can be reasonably raised whether this is a copy, imitation or original design of Walmart and whether there is a risk that Walmart will be liable for infringement of Hermès` intellectual property rights.
Intellectual property lawyers are familiar with the fact that the iconic Hermès Birkin is protected by the manufacturer with all available intellectual property rights as a whole, but also its individual parts, including trademark, industrial design, trade dress.
Imitation, in the sense of the English word “dupe”, generally refers to an item inspired by or similar to a luxury product, but not an exact copy. While imitation aims to capture the essence of luxury without the corresponding price, it often walks a fine line between legal inspiration and infringement of intellectual property rights. The question of whether the so-called imitation is within the limits of what is legally permissible, if assessed under the laws of the United States of America (which do not require an exact copy) should be considered from several aspects: the likelihood of confusion, the possibility of brand (trademark) dilution and the significant similarity between the products. The labeling of the bag also plays a significant role, as it is characterized on the Walmart website as a “leather bag” and nowhere is the name Birkin referred to.
Whether Hermès will decide to file a lawsuit against Walmart in the United States or will let the leather bag coexist with the iconic Birkin remains to be seen.