“Fashion fans are desperate to get their hands on a ‘Walmart Birkin,’ also known as a ‘Wirkin,'” the New York Post reported this weekend, referring to an inexpensive handbag that looks very similar to Hermès’ most sought-after offering. Priced at between $78 and $102 depending on bag size, the “Walmart Birkin” has gained so much viral status online that it has sold out on the retail giant’s website more than once. Both TikTok users and the media were quick to label the bag a “dupe,” a term that typically refers to legally sound products that replicate the look of high-priced goods – without any legally protectable elements. But is the “Walmart Birkin” actually in good standing from a legal perspective? Probably not.

A version of the Birkin bag offered on Walmart’s e-commerce marketplace (through a third party) does not use Hermès’ name on the bag itself; On a genuine Birkin, the Hermès name appears on the body of the bag, under the flap, inside the bag, and on various hardware. At the same time, the discount replica does not copy the trademarked Hermès “H” logo that can be seen on the lock of an authentic Birkin bag. However, the offer for the “Genuine Leather Handbag Purse for Women” from a third-party company called KAMUGO, for example, does not use the Hermès name or the “Birkin” word mark.

> Other offerings, such as one from third-party company Sulikehz, use the wordmarks “Birkin” and “Hermès,” which can lead to potential trademark issues.

The KAMUGO-made bag and other similar bags are almost certainly still in violation of the law, as the appearance of the Birkin bag itself is protected – with or without the inclusion of the Hermès wordmarks. Yes, in addition to the rights to the BIRKIN name, Hermès has a sort of monopoly on the bag’s distinctive shape. In other words, Hermès has rights to the trade dress of the Birkin bags, which consists of…

“The configuration of a handbag with rectangular sides, a rectangular bottom and a triangular profile with dimples. 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. Above the flap is a horizontal rectangular strap with an opening to accept a padlock loop. A lock in the shape of a padlock forms the closure for the bag in the middle of the strap” … for use on handbags.

Keeping the above in mind, the question becomes one of confusion. If Hermès were to bring a trademark infringement lawsuit against KAMUGO (the company behind the bag) for offering and selling the bag, and against Walmart for facilitating the sale, the key question would be whether consumers are likely to know the origin Confused about the bag are the handbag and/or Hermès affiliation/recommendation of the bag given its almost exact appearance. There are several factors that would favor Hermès in such an analysis; In addition to the strength of Hermès’ Birkin retail presence and the apparent intent to trade on the appeal/demand of the Birkin bag, there is the fact that third-party vendors are offering purportedly authentic Birkin bags on the Walmart marketplace.

A quick search on the e-commerce platform shows that dozens of potentially authentic, pre-owned Birkins are available for prices upwards of $15,000. This could enable Hermès to support its previously hypothetical claim of trademark infringement by arguing that consumers are more likely to be confused because authentic Hermès bags are (potentially) available on Walmart’s website.

On the other hand, Walmart and the third-party sellers could highlight the staggering difference between the price tags of the allegedly infringing bags ($100 or less) and the prices of real bags, which regularly sell for $10,000 or more on the secondary market, to boot claim that consumers are unlikely to confuse the two. In addition to the very different prices of the bags, the hypothetical defendants could also likely argue that the marketing and distribution channels for authentic Birkin bags and the allegedly infringing bags are very different, risking consumer confusion. Here Hermès could at least partially counteract this, pointing to the robust resale market for its most sought-after bags and the resulting lack of clear boundaries between previously different sales channels.

Regardless of the outcome of an infringement claim, Hermès would also have a dilution claim on its hands given the notoriety of its Birkin bag trade dress. Unlike trademark infringement, which involves likelihood of confusion, a trademark dilution claim allows the owner of a truly famous trademark to prohibit unauthorized use of that trademark, regardless of whether consumers may be misled about its origins, in order to obtain a diminution of their trademark prevent distinctiveness or impairment of the goodwill associated with the brand.

Chances are good that the listing will disappear in the wake of widespread media attention to the fake Birkins being offered on Walmart’s marketplace. Hermès will undoubtedly initiate takedown proceedings at Walmart. Stay tuned to see if any action will be taken against the individual sellers, many of whom appear to be based in China and/or Walmart, to prevent future sales and/or seek damages.