Dupe culture has become a significant trend in the fashion industry, where consumers seek affordable alternatives to high-end, designer items. These dupes mimic the appearance and feel of luxury products but are sold at a fraction of the price. While this may “democratise” high-end fashion, making it accessible to a broader audience, it raises complex intellectual property issues. 

Hermès, the renowned French fashion house, faces the latest dupe challenge with the “Wirkin”, a replica of its iconic Birkin bag sold on Walmart's marketplace. Hermès has invested heavily in the design, craftsmanship and brand image of the Birkin to safeguard its creation. The “HERMÈS” name and figurative “H” logos are registered trade marks, and in 2005, the brand successfully registered an EU 3D trade mark for the Birkin bag's shape, which later led to the creation of comparable UK registrations post-Brexit. 

Dupes can blur the lines between inspiration and imitation, leading to legal disputes over trade mark and design right infringement and copyright violations. Although the Wirkin does not feature the Hermès name or “H” logo, nor does it (officially) refer to the trade-marked name “Birkin”, it could still be challenged on the basis of the 3D trade marks, design rights and/or Hermès’ “trade dress” rights in the Birkin. 

A key point in any legal action will be whether consumers are likely to be confused about the source of the bag and any affiliation with Hermès. Hermès is yet to comment on the Wirkin, but it would not be surprising if the brand pursues an infringement action, particularly since authentic, pre-owned Birkin's are also available on Walmart's marketplace, which could lead to consumer confusion. However, it would be challenging to argue that a consumer could mistake a Wirkin, priced at $100 or less, for a pre-owned Birkin, which starts at $10,000, given the significant price difference. 

Hermès may rely on the Birkin's registered 3D shape mark to argue infringement. While proving “original distinctive character” in the shape of a tote bag can be difficult, it is possible to acquire distinctiveness through use. This issue was highlighted in 2009 when Hermès' Birkin and Kelly 3D trade marks were challenged as being “standardised” in the market. In 2022, the Italian Supreme Court found that the marks had acquired distinctiveness, although the case was remitted back to the Court of Appeal and is yet to be heard.

Given the extensive media attention that the Wirkin has garnered, and Hermès’ track record of defending its intellectual property, one would think that Hermès is weighing up its options for takedown proceedings against Walmart. A further legal case may also be helpful generally to brand owners, fast-fashion entities and legal experts alike in clarifying the line between inspiration and unlawful imitation.