By Daniela Dávila
The recent case of the Wirkin bag (Walmart-Birkin), sold through Walmart’s digital platform, has reignited the debate surrounding the normalization of piracy in fashion and the impact of dupes on luxury brands. The Wirkin mimicked the iconic design of the Birkin bag, a piece that requires approximately 40 hours of artisanal craftsmanship and whose exclusivity is supported by prices ranging from $17,000 to $200,000. In contrast, the Wirkin was sold at prices between $66 and $102, making a similar—if not identical—design accessible to a much broader audience.
The Controversy of Dupes
Dupes (deliberate copies of iconic designs) are not a new phenomenon. While many criticize them using the same ethical arguments leveled against fast fashion—such as environmental concerns, labor rights violations, and a lack of authenticity—others defend them for democratizing luxury fashion, making it accessible to those who cannot afford the originals. This trend has contributed to the normalization of counterfeit product trade across various sectors, from small-scale producers to industry giants like Walmart.
However, the issue extends beyond merely replicating designs. These imitations do not only copy products but also dilute the value of the brands they seek to emulate. Hermès, in particular, builds much of its prestige on the exclusivity and status associated with owning its high-priced products.
Although Hermès’ target market, consisting of ultra-high-net-worth clients, is unlikely to be directly affected by dupes, the brand has a legitimate interest in protecting its reputation. The removal of the Wirkin from Walmart’s website on January 2 suggests that Hermès may have already taken action.
Hermès’ Legal Actions
Hermès holds significant registrations protecting both the “Birkin” name and the distinctive design of the bag. These fully enforceable registrations provide the brand with a strong foundation to act against any confusing or similar use.
In the case of the Wirkin, Hermès could argue that the overexposure of exclusive designs through more affordable imitations not only undermines the perception of luxury but also threatens the Birkin’s exclusivity as a cultural symbol. The Birkin bag is not merely an accessory; it has achieved the status of an important cultural icon, accessible only to customers with a prior relationship with the brand. Hermès enforces a rigorous purchase process, reinforcing the exclusivity and status of its products.
Additionally, Hermès could claim a violation of trade dress, a legal concept that applies when an imitation creates confusion among consumers about the source or approval of the product. Interestingly, this confusion is not limited to the moment of purchase; it can extend to post-sale scenarios, where third parties see the bag in use and mistakenly associate it with Hermès. In this context, even if the original buyer is aware that they purchased a copy, external observers may not recognize it as such, amplifying the potential damage to the brand’s reputation.
Walmart’s Defense
Walmart, on the other hand, might argue that while the design is strikingly similar and even potentially confusing, the significant price difference between the Birkin and the Wirkin greatly reduces the likelihood of consumer confusion. Consumers could reasonably dismiss the idea that a product sold at such a low price could be associated with Hermès. However, this argument does not necessarily absolve sellers of responsibility, especially if there is evidence of a deliberate intent to capitalize on Hermès’ reputation.
In the United States, while designs themselves are not inherently protectable, certain distinctive elements can be safeguarded through trademarks and design patents. Hermès has a strong track record of protecting its intellectual property, having established important precedents in the past. The Wirkin may very well be the next case on its list.
