Few luxury goods carry the cultural cachet of the Hermès Birkin bag. An $80 dupe—a replica not intended to be a convincing counterfeit—sold on Walmart’s website has joined the conversation about trademark infringement, dilution, and how consumer survey evidence could prove decisive if litigation were to follow.
Background: From Birkin to Wirkin
The Birkin is the signature handbag of French luxury house Hermès, an icon of handbags with a retail price ranging from approximately $15,000 to $300,000 when sold new, and a thriving secondary market. The bags are sold through Hermès boutiques, select department stores, and online luxury retailers.
Walmart occupies the opposite end of the retail spectrum. On the resale marketplace section of its website, a third-party seller named Kamugo listed a leather handbag resembling the Birkin in shape and silhouette. The product carried no Hermès insignia, no Birkin name, and no reference to the French fashion house. Yet consumers quickly noticed the resemblance and nicknamed it the “Wirkin.” The bag, priced between $80 and $125, was reportedly selling out before Walmart pulled the listings. Does the Wirkin infringe on the Birkin?
What Hermès Protects
Hermès holds trademarks for the name “Birkin” and the bag’s shape. The shape’s trademark registration describes the configuration in detail: a handbag with rectangular sides, a rectangular bottom, a dimpled triangular profile, a rectangular flap with three protruding lobes flanking two keyhole-shaped handle openings, a horizontal rectangular strap with a padlock eye opening, and a padlock-shaped clasp at the center.
The Wirkin does not use the Hermès or Birkin names, and lacks identifying Hermès marks; however, its shape and hardware are visually similar to the registered trade dress for the Birkin. Comments beneath the Walmart product listings referenced the Birkin by name, and Walmart’s marketplace also hosts listings for authentic, pre-owned Hermès Birkin bags.
Consumer Survey Research in Trademark Litigation
If Hermès were to pursue trademark infringement claims against Kamugo and Walmart, litigation surveys could become central to the dispute. A likelihood of confusion survey would be one form of evidence that either party could include in an infringement claim. Conducted using established survey formats, such as the Eveready or Squirt methodologies, it could measure whether consumers believe the Wirkin originates from, or is affiliated with or endorsed by, Hermès.
A likelihood of dilution survey sometimes accompanies a likelihood of confusion survey, and supports a separate but related claim: whether a famous mark’s distinctiveness is being blurred or its reputation tarnished by association with another product. Hermès might argue that selling a visually similar bag through a mass-market discount retailer weakens the luxury mark’s distinctiveness.
Kamugo and Walmart could retain their own survey experts to challenge any showing of confusion or dilution, or to commission affirmative surveys demonstrating that consumers do not associate the Wirkin with Hermès. If opposing survey evidence is admitted, a survey rebuttal from another qualified expert may expose methodological weaknesses and minimize its weight with the court.
Whether the matter involves a genuine dispute like this one, or consumer research to test legal strategies, IMS Legal Strategies designs and conducts likelihood-of-confusion surveys, likelihood-of-dilution surveys, and survey rebuttals that meet rigorous legal standards. Our experts have supported counsel in matters before federal and state courts, the Trademark Trial and Appeal Board (TTAB), and the National Advertising Division (NAD). Contact us to discuss how survey evidence could strengthen your position.
