Said Bethenny Frankel — a "Real Housewives" star — quoted in "Hermès tight-lipped on Wirkin bag, Walmart’s dupe of the Birkin/Walmart’s copy of the vastly more expensive and exclusive Birkin handbag has been praised on social media for breaking through the snobbery of high fashion" (London Times).
Hermès does not sell the Birkin online and until recently maintained a months-long waiting list, helping to protect its exclusivity. Hermès stores are only allowed to buy a select number of the bags bi-annually and the style of bags being delivered is rarely known before they arrive.... Hermès is yet to publicly comment on the Wirkin. Legal experts say the Birkin bag’s logo, its shape and design, are registered trademarks and therefore have legal protection....
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Reminds me of generic sneakers. Change a couple of small design elements, don't use the brand name or trademarks, and how can you say it's an IP violation? There are only so many ways to make a running shoe. Or a big rectangular bag.
JSM
Trials and tribulations of the 1 percent.
Ok, I will be the first to accuse you of ‘padding’. 😂
The next thing you know, someone will clone the Rolex Submariner watch and the luxury crowd will lose their minds! The mob will sell $10K watches for $50! Egad.*
https://www.donatwald.com/best-rolex-submariner-homages/
*Said the media way back in the 1950s, and before literally thousands of clones hit the market. The snobs continue to pay through the nose for a genuine Rolex with an apparent 95% profit margin. Watch designs are considered 'functional,' so they are legal to copy except for logos and artistic touches.
Or designer jeans. The chief difference between brands is the decorative back-pocket stitching. All the other features would fail the “non-obvious” test.
JSM
I'm on the waiting list for a Merkin.
“ Legal experts say the Birkin bag’s logo, its shape and design, are registered trademarks and therefore have legal protection.”
Slam dunk.
How could Walmart’s legal department be so stupid?
At your link, the copies were called homages. Sounds better than dupes.
'Homage' is a watch industry euphemism that allows them to not say rip-off, copy, fake, or clone. The word apparenly comes from the French circa 1300, as "allegiance to a feudal lord."
https://www.etymonline.com/word/homage
Also see how car dealers bend over backwards to avoid saying "used cars" -- instead they say previously owned, previously loved, lease returns, etc. etc. etc.
"How could Walmart’s legal department be so stupid?"
Assume they are not stupid and answer your own question. To me, it's obvious.
An expensive handbag should be worth it because of the quality and aesthetic appeal. If you're paying extra because you know other people, people who can't afford it, will recognize that it's a particular expensive bag... well, you shouldn't want THAT expensive bag. You should pick a different expensive bag. I think the Birkin bag has become the biggest cliché of an expensive bag and no one was buying it for its tangible value as a useful and beautiful object. So I think the Walmart stunt is all for the good. Good for Walmart sales. It gets attention for producing something that might seem nice to some people (though I think it looks bad in the photographs), and Hermes will probably get some $$$$. The strivers who have overpaid for Birkin bags won't get compensated. But no one cares about them.
See the photos. This is simple rectangular bag/purse with a wrap-around belt to close the top. The handles and overall shape are dirt common and fully generic. The belt closure design is a bit distinct, but securing a bag with a loop tie and buckle on top is a standard, even primitive, method.
Tweak the buckles and belt and Walmart is almost certainly safe. They have capable lawyers.
I get hat the logo is trademarked, but wouldn’t Hermes have to show that their “shape and design” are unique in the history of purses in order to claim trademark status? Basically it’s a handbag designed to resemble a smallish shopping bag.
We senior engineers used to get annual lectures about how to get a patent (and, yes, I have one) and why the corporation might prefer not to patent some of our technical breakthroughs and keep them as trade secrets. Trademarks typically got about five or ten minutes for completeness, so it’s not as though I know much about trademark law.
The Walmart site sells its own items but also merchandise from third party sellers. The dupes are usually available on Walmart or Amazon for a while and then they disappear, I suppose when the sites are informed about them. I couldn’t find them on Walmart today but they are available on Amazon.
Thanks for the link because I was finally able to find a reasonable Goyard dupe on Amazon.
The tone of the article has you thinking of the question backwards, I suspect. It's a trademark, not a copyright. The relevant standard, if I understand it correctly, is not "are Hermes customers mad their status symbol might become declassee?" but "does anybody buying a Wirkin at Walmart think they are getting a deeply discounted Birkin?"
I can't even find this thing on Walmart's site. Is it offered only in the UK?
In elementary school in the late 70s and early 80s I remember wearing a lot of Le Tigre shirts. Could get them at Kmart and Mervyns for very affordable
"The relevant standard, if I understand it correctly, is not "are Hermes customers mad their status symbol might become declassee?" but "does anybody buying a Wirkin at Walmart think they are getting a deeply discounted Birkin?""
No, I don't think you're getting that right. It's more: Is Walmart selling an item will be mistaken by onlookers as the Hermes bag? Is it appropriating value that belongs to Hermes?
But the question here isn't merely what will a court do with the trademark question, but also, assuming it's a trademark violation, was it worth it to Walmark to manufacture and market this item?
Thank God my Rorrex watch is authentic.
The question has been recently and unanimously addressed by the Supremes in the Jack Daniel’s Bad Spaniels chew toy case. The traditional trademark issue is whether consumers would have been misled about the source of the product or endorsed by the trademark owner. The court decided that the matter must go to trial to answer that.
I agree that the Walmart legal department made a foolish mistake. We’re not talking about discerning the supplier of Tennessee whiskey from a supplier of a joke dog chew toy. It’s the comparison of one bag accessory called Birkin and another similar bag called Wirkin. Why risk an adverse finding that could amount to many $$millions in damages!? Stupid justifiably comes to mind.
- Krumhorn
The story says that the rich will soon be 'throwing away' their authentic Birkin bags, ha ha ha, thanks to the commoners toting nearly identical ones. They don't know the rich very well, including the part about how they get rich. The story has a delicious 'How Dare You infringe on my exclusivity!' vibe to it. Good for Walmart! They haven't infringed on anything by doing a good job of imitating a purse, other than to show that the Empress's clothes are made of field cotton, all the same. When you open the bag, does it smell like Walmart?
And that does not begin to address the consequences if it is determined that Birkin is a famous mark. In that case, damages flow from market dilution. Now we’re talking REALLY STUPID.
- Krumhorn
My Rolodex keeps perfect time, and easy access to my contacts' information.
This is a "Pay no attention to that man behind the curtain" story.
Wirkin is not the official Walmart name of the bag, counsellor.
Hehehehehe
There was a similar Volkswagen commercial along these lines 10-15 years ago.
https://www.youtube.com/watch?v=WUtE3QlTpKI
The rich folks will just switch to something else. "Oh, you have stars upon thars? That's so passe."
Correct, Howard. Thanks! I didn’t read the article carefully enough. However, the legal analysis remains the same if the imaging is similar. It certainly doesn’t help that everyone else made that association. I couldn’t find any of the products…or reference to them…on the Walmart site so I imagine that outside counsel gave someone a call and melted the phone.
One of the characteristics of a famous mark, if it is determined to be so, is that the mark is protected from dilution even if there is no market confusion or even direct competition.
- Krumhorn
Shoe makers sue other shoe makers all the time. Sometimes trademark, often design patents.
How could Walmart’s legal department be so stupid?
Walmart's usual practice is to approach a manufacturer to make knock-offs, leave it up to the manufacturer to make sure they are different enough not to infringe, and require the manufacturer to indemnify Walmart against any infringement suits.
Does the Wirkin have a disclaimer printed on it , like the Dethklock Underwater album? https://www.youtube.com/watch?app=desktop&v=pRG6YfVCHd0&t=5s
A recent "60 Minutes" report on Hermes showed how Birkin bags are made -- with extremely high-quality materials, hand-stitched by artisans who are specially trained for the job. They may not be worth the exorbitant prices people pay for them, but they do have special value that goes beyond scarcity and brand recognition. The question is whether the existence of somewhat similar-looking bags -- whose quality could be described as "pretty nice for Walmart" -- will reduce their perceived value anyway.
The relevant standard, if I understand it correctly, is not "are Hermes customers mad their status symbol might become declassee?" but "does anybody buying a Wirkin at Walmart think they are getting a deeply discounted Birkin?"
If they are using a knock-off logo, it would be direct infringement. Otherwise, there is a trademark theory of dilution by tarnishment. If you sell pieces of crap bearing my name, you reduce the value of my name even if an ordinary purchaser would not believe your crap came from me.
An expensive handbag should be worth it because of the quality and aesthetic appeal. If you're paying extra because you know other people, people who can't afford it, will recognize that it's a particular expensive bag... well, you shouldn't want THAT expensive bag.
That is (unconvincingly) naive.
This perfectly demonstrates why the Walmart bag would be found liable for dilution.
The lust that women have for these unprepossessing handbags is something I will never understand. After considerable wheedling, I bought my wife one of them some years ago when a particularly handsome annual bonus came in, and let's just say I have never been so warmly and enthusiastically thanked after giving a gift.
It sounds like you're saying that if the overall gestalt of the item in question is similar enough to the original, that constitutes infringement. I suppose that the popular culture reaction giving the item a nickname is proof that the item is similar enough to be infringing.
Had a former friend/coworker over for burgers shortly after she moved here to NM from Portland. She got very excited when she saw me taking out the Tillamook cheddar cheese. "That's such great cheese-where did you find it, I haven't seen it for sale here." "Walmart." She sniffs, "We don't shop at Walmart. I'm sorry to hear Tillamook sold out for cheap profits...." She stopped talking to me after Trump won the first time.
Named after the beautiful and stylish Jane Birkin who passed away a few years ago. If there's a companion bag named for her husband, the fat and slovenly Serge Gainsbourg, I might consider buying it.
I'm betting that Hermes loses, and ought to.
In Hollywood, they would deny ripping off Hermes, styling it "an homage". But what works in words may not in form.
I am trying to imagine Althouse saying this to Kim Kardashian. An example of how one's priors can render communication in the same language impossible.
Yeah. Sorry. I was thinking about the Roman Empire.
Trademark law is full of ambiguous and even contradictory principles that make disputes inevitable, unpredictable, often inconclusive, and wildly expensive.
I doubt you can find a handbag design to patent that WalMart cannot point to another bag that precedes Birkins and it as similar to Birkin as Walmart is. Tough row to hoe.
It's not the same legal path as patents. Trademark disputes don't look at prior art or novelty after the mark is registered. In fact, those concepts don't exist outside of patent law. All of conflict analysis on trademarks takes place at the time of application. If the examiner finds conflicts, the applicant can make argument in an office action and there are opposition hearings mounted by those claiming interference, but once issued, there is no process similar to inter partes review that plague the patent world like bed bugs, locusts, vermin, and lefties.
- Krumhorn
There are broadly speaking two types of claims, which get multiplied into lots of legal theories of relief due to the overlap of common law, statute law, federal law, and state law. One type of claim sounds in common law "passing off" and looks to multifactorial tests of likelihood of confusion that vary among circuits. In the Second Circuit(including NY), they are: “(1) the strength of the plaintiff's mark; (2) the degree of similarity between the two marks; (3) the proximity of the products; (4) the likelihood that the owner will bridge the gap; (5) evidence of actual confusion; (6) defendant's good faith in adopting the mark; (7) the quality of defendant's product; and (8) the sophistication of the consumers. will likely cause confusion with plaintiff's mark.” Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir.1961).
The second type of claim considers dilution of a mark, even without confusion. In determining if a mark is likely to cause dilution by blurring or tarnishment the following factors are relevant: (1) similarities between the marks; (2) degree of distinctiveness of the famous mark; (3) extent of substantially exclusive use of the famous mark; (4) degree of recognition of the famous mark (level of fame); (4) was there an intended association with the famous mark; and (5) any actual association between the marks. See Tivo Brands, LLC v. Tivoli, LLC, 129 USPQ2d 1097 (TTAB 2018).
Imagine all of the fun the lawyers and their experts can have chasing down evidence on all of these wondrous factors. And the best part, for lovers of legal fees, is that there is no generally accepted algorithm by which courts are supposed to take the individual factors and calculate the outcome.
It's a system that will produce outcomes by which the politically influential and the wealthy will tend to get their way.
I am not a fan of trademark law.
Take a tour on Walmart’s website site. There are knockoff LV bags on there, including the Neverfull. Another knockoff Hermes is on the website even now. “Unbranded” Premium Leather Bucket Bag. Yet another Hermes knockoff is sold out (unknown if it was pulled or is sold out…it’s a clear violation given the big “H” that is recognizably Hermes. ) The only difference is they’ve never reached as high as a Birkin.
Diversity (Equivocation, and Implosion) politics.
The rich ladies put on their expensive jeans with the knees and thighs ripped out to look like poor walmart patrons. Now they can carry their expensive Birkin bags to further mimic them.
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