Walmart's 'Wirkin' Bag Potentially Challenges Hermès, Promptingthe Defence of Its Birkin Brand Trademark.
Fashion enthusiasts who've been yearning for Hermès' high-end and exorbitantly priced Birkin handbag received an early holiday gift, courtesy of Walmart.com. It showcased a budget-friendly replica of the Birkin, nicknamed the "Wirkin" on social media, targeting the "working-class Birkin" or "Walmart Birkin," at a price of approximately $100 versus the $10,000 and above for the authentic product.
The digital world went ablaze when Kristi Stephens, known as @styledbykristi on TikTok, posted an unboxing video on December 19. Since then, the video has amassed over 8.8 million views.
Unlike the prevalent counterfeit luxury items in the industry, estimated to have escaped the industry with a loss of $464 billion from fake and pirated goods sales worldwide in 2019, according to the European Union Intellectual Property Office, the Wirkin isn't involved in any deceitful sales practices.
The Wirkin hasn't triggered any noteworthy concern from the luxury fashion industry, except for intellectual property attorney Milton Springut who pointed out potential legal complexities.
What's the Damage?
The Wirkin is an insignificant threat to Hermès sales, which constantly upholds the authenticity and provenance of its luxury goods. Milton Pedraza, founder and CEO of the Luxury Institute, views the Wirkin and similar replicas as merely a nuisance to premium brands.
The affluent and the incredibly wealthy consumer demographic that Hermès typically targets is uninterested in replicas. However, they've grown aware of the marked increase in luxury brand prices following the pandemic, rising by an average of 50%, according to HSBC, with luxury attributes like superior quality or value hardly increasing in tandem.
Last year, LVMH's Dior brand encountered controversy over worker mistreatment at some of its Italian manufacturing partners responsible for producing a $57 handbag that was subsequently sold at nearly $3,000 by Dior. Even the luxury market's core affluent and incredibly wealthy customers became aware of the issue.
There's a sense that luxury brands have been dismissive of customers by failing to live up to the high standards and unparalleled values that built their reputation. And with the advent of the Wirkin and other replicas, customers are starting to push back.
"This broke the luxury market's glass ceiling," Bethenny Frankel, the former star of The Real Housewives of New York City and the founder of Skinnygirl brand, stated in a TikTok post.
In another post, she added, "This is essentially the mob storming the castle, saying 'We're here too, bitch, deal with it.' You guys flaunted it. You guys made it seem as if we'd never be part of this, and now we are." That post has amassed 6.5 million views and counting.
Total Transparency
Although luxury handbag replicas have been around for some time, they have recently gained popularity with Chinese e-tailers like AliExpress and DH Gate making them more accessible through posts on TikTok and other social media platforms.
Allegedly, some replicas are manufactured in the same factories as the originals, but Hermès solely utilizes its own factories for Birkin bag production.
The Wirkin takes replicas a step further, being offered on Walmart.com, which lends more credibility to the product. It was manufactured by Kamugo and Aidrani and introduced in two sizes and twelve colors, although the bags were not available in Walmart stores.
The exterior is made of genuine cowhide leather, while the interior is synthetic and features look-alike hardware. Many styles quickly sold out due to Stephens' post, and by January 2, the items were no longer listed, but pre-owned Hermès bags could still be found on the site.
Lucky Wirkin buyers received a decent facsimile. Frankel opined that the Wirkin has the same shape, size, and structure as a Hermès Birkin selling for over $12,000, plus it falls under the convenience of a cross-body strap.
Stephens admired the Wirkin's appearance and feel. "It's genuine leather. It's lovely, such a vibrant color, nice hardware. For $80, you can pretend you've got a Birkin. Nobody's gonna think you've actually handed over $12,000 for it; not me!"
Another TikTok creator, Dillion Reeds, was amazed by how closely it resembled the real one. "Other than it not having the Hermès logo, it literally has all the same hardware."
She expressed to him that she didn't think it would affect the actual Birkin bag itself. Buying an Hermès bag is similar to purchasing a piece of art, she explained. It's an elite club to belong to, and she believed this exclusive status wouldn't change.
However, Frankel raised a valid point about the growing encroachment on this exclusive community, and it's up to Hermès to safeguard its boundaries.
To this day, Hermès has kept quiet about the Wirkin, but it's likely their legal team has been busy. Hermès has a history of vigorously protecting its intellectual property, having secured a $100 million ruling against fake Hermès websites.
In 2022, they also won a case against artist Mason Rothschild, who created NFTs called MetaBirkins, asserting in court documents that "MetaBirkins blatantly misuses Hermès’s famous Birkin trademark."
Although the Wirkin lacks any trademarked logos, it might face legal challenges under the trade dress aspect of trademark law, as Springut suggested. Trade dress refers to a product's design or packaging when this design serves as a symbol of the product's origin. To prove trade dress infringement, you must demonstrate that the infringing design creates a likelihood of confusion among consumers.
Hermès has various trademark registrations for its Birkin bag, including a trade dress registration for its distinctive shape. "If consumers link the Walmart Wirkin bag with Hermès's iconic bag, particularly because of its resemblance, this could support a claim of trade dress infringement," concluded Springut.
The complication arises when confusion between the genuine item and a counterfeit emerges even after the sale. "This happens when a third-party mistakenly associates the bag with another brand (e.g., Hermès) after seeing it worn or used in a post-sale scenario," Springut explained.
This leads us to wonder if Hermès will target the Wirkin producers or even Walmart for selling the products, despite them being listed on a third-party online marketplace. For instance, Chanel secured a $4 million judgment against What Goes Around Comes Around for selling fake bags.
Hence, it seems Walmart may have triggered a sleeping giant by selling the Wirkin bags.
"Whether Hermès decides to take legal action against Walmart relies on the brand's evaluation of the potential effect on its reputation and the strength of the case under trademark law," Springut concluded.
The intellectual property attorney Milton Springut suggested that the Wirkin, while not causing significant harm to Hermès' sales, may still face legal challenges under the trade dress aspect of trademark law due to its resemblance to the Birkin bag. The Wirkin's manufacturers, Kamugo and Aidrani, could potentially face legal consequences if consumers confuse the Wirkin for an authentic Hermès Birkin bag post-sale, leading to potential trademark infringement claims.
Despite Walmart's listing of the Wirkin bags on its website by third-party sellers, the case of Chanel securing a $4 million judgment against What Goes Around Comes Around for selling fake bags raises questions about Walmart's potential involvement in potential trademark infringement claims related to the Wirkin bags.
