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Hermes Pursues Bag Copiers
Posted by Steven Wu on Tuesday, August 12 @ 01:44:32 EDT Trademark
Hermes, the maker of the famous Birkin bag, is bringing a trademark, trade dress and unfair competition lawsuit in federal district court against a New York store for selling a replica Birkin bag made of rubber rather than leather. The owner claims it's a satire on the hideously expensive Birkin; Hermes isn't amused.

Here's Hermes's argument:

[W]hat aggrieves Hermès lawyers most is the attempt to convey the gestalt of a Birkin or Kelly bag, which they consider a violation of the company's intellectual property. . . . [T]he widespread celebrity the bags have attained constitutes a trademark in itself. "If everyone on Madison Avenue has a fake Kelly or Birkin, it dilutes the exclusiveness of the brand," he said.
I leave it for others to evaluate the merits of this argument. Read the New York Times article here

Of course, anybody who has been to New York's Chinatown district, or similar places around the world, knows that knockoff bags are everywhere: you can buy nearly indistinguishable Hermes, Kate Spade, Prada, Louis Vuitton, Gucci, etc. bags at a fraction of the genuine cost. By the very nature of the object being copied, bag-design infringement is not as widespread as copyright infringement, but, like pattern piracy, it's there and often very, very mainstream. Some parties may see intellectual property as property; it's clear, though, that many people from all walks of life think quite differently, and act accordingly.

 
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Re: Hermes Pursues Bag Copiers (Score: 0)
by Anonymous on Tuesday, August 12 @ 10:44:07 EDT
I always think it sounds funny when a trademark plaintiff attempts to argue the widespread knowledge among the public of its mark. It always sounds to self promoting.

Perhaps it is this lack of modesty that makes it seem like a declaration of marketing victory. It is as if they are proudly declaring, "This is unfair because it was our pandering to greed and vanity that fooled the stupid American public into paying too much for something."

Maybe I am just jaded by years of being inundated by marketing machines that think little of the consumer's intelligence or maybe it's just the above use of the word "gestalt."

What's this bag even look like? I haven't even heard of it. How hideously overpriced is it?


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Re: Hermes Pursues Bag Copiers (Score: 0)
by Anonymous on Tuesday, August 12 @ 17:19:38 EDT
Last time I checked, there was no federal cause of action for "bag-design infringement."


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Re: Hermes Pursues Bag Copiers (Score: 0)
by Anonymous on Wednesday, August 13 @ 17:01:15 EDT
There isn't, its called trade dress infringement. That only works, however, if the consuming public recognizes the distinctive characteristics of the bag with that particular designer. As you can imagine, this analysis turns greatly on your definition of the audience. Do you measure it nationally or among the upper-class sex-in-the-city Manhatten-ites.



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