Legal Questions Arise as Walmart’s ‘Birkin’ Goes Viral on TikTok and Sells Out
A $60 Walmart handbag bearing notable similarities to the coveted Hermès Birkin has become TikTok’s latest viral sensation. Over the past few weeks, fashion enthusiasts have jumped into a heated discussion on the social media platform regarding the budget-friendly bag’s soaring popularity. In nearly a thousand videos published on the platform, viewers can find hardcore supporters of the original Birkin bag, while many advocate for the Walmart “dupe” and even teach potential buyers how to score them.
Aptly named “Wirkin,” the dupe can be found on Walmart’s website in listings from third-party sellers Kamugo, Bestspr, Ymtq and Judy. The Birkin look-alike is described as a genuine leather handbag purse for women and a tote shoulder bag. Prices vary from $60 to $299.98, depending on size and color. All listings on the retailer’s website are sold out, and although the third-party sellers may be profiting from the viral discussion on TikTok, questions about the dupe’s legality have been raised.
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According to Douglas Hand, a fashion lawyer and a member of the business advisory committee of the Council of Fashion Designers of America (CFDA), Hermès could pursue a cause of action of trade dress infringement against Walmart and the respective third-party vendors selling the Birkin dupe.
“For an extremely valuable product like Birkin, which could be diluted and devalued through its overexposure, it would not be surprising for Hermès to take an aggressive approach,” Hand said, adding that Hermès “may seek to prevent what is called ‘post-sale confusion’ which is the circumstance where, even if the purchasing consumer knows the product is not genuine, Hermès’ reputation could be harmed by those who see others carrying the bags and think that Hermès is making shoddy product.”
In general, selling a dupe product can lead to an accusation of intentional copying. In trademark law, intentional copying refers to deliberately imitating protected elements of another company’s products to benefit from their reputation or confuse consumers, including similarity of design elements, evidence of intent to copy, actual confusion in marketplace, likelihood of consumer confusion and proximity in the market/price point. The latter could favor Walmart and its third-party sellers, considering the drastic price contrast from the dupes to the original Birkin bags, which can start at around $10,000 and go up to the millions.
“Price point disparity comes into play in a few ways,” Hand said, explaining that the alleged infringer could argue “that consumers would not be confused because they know that Hermès does not and would not sell a bag at that price point.”
On the other hand, Walmart’s marketplace also features third-party sellers offering what are claimed to be authentic Birkin bags from $12,000 to $40,999, which could be used to claim confusion in the marketplace. Hermès would have an even stronger case if any of Walmart’s third-party sellers intentionally infringed on the federally registered trademark “Birkin” to sell their dupes. Until Sunday, third-party seller Sulikehez had incorporated the words “Birkin bag” within its dupe listing before Walmart removed the page.
“To the extent Walmart is promoting the bag as the equivalent of, or an alternative to, the Birkin bag, it would be hard for them to deny that intentional copying,” Hand said.
Representatives for Hermès and Walmart did not return requests for comments ahead of publishing.
Hermès has a long history of defending its Birkin trademark and design rights for decades, targeting exact counterfeits and inspired designs. In 2011, Hermès filed a lawsuit against Thursday Friday for selling canvas bags with Birkin images. In 2012, Hermès won $100 million in damages after it sued 34 websites for selling fake Hermès goods, including counterfeit watches. In 2022, the luxury house sued Mason Rothschild, claiming the artist’s “MetaBirkins” NFTs amounted to trademark infringement.
Courts have generally favored Hermès, setting a strong precedent for protecting Birkin’s distinctive design elements.
“Generally speaking, the more famous the trade dress rights are, the greater the likelihood of protection,” Hand said.
Hermès wasn’t the only luxury house targeted by the viral dupe culture that gained popularity on social media in 2024. Dupe versions of Gucci’s horsebit loafers, Chanel’s quilted bags, Bottega Veneta’s woven design and Cartier’s Love bracelets were all over TikTok this year.
Hermès released the Birkin bag in 1984; it was designed by Jean-Louis Dumas after a request from Jane Birkin. Entirely made from hand, the bag has become one of the most coveted styles and is produced in limited quality.
During a recent interview for “60 Minutes,” Hermès’ artistic director Pierre-Alexis Dumas explained why the brand is “costly.” “I’ve always heard that Hermès is very costly. It’s not expensive. It’s costly,” he said. “Expensive is a product which is not delivering what it’s supposed to deliver, but you’ve paid quite a large amount of money for it, and then it betrays you. That’s expensive.”
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