Walmart vs Hermès: unfair competition and trade dress violation?

Walmart’s recent launch of a replica of Hermès’ famous Birkin bag, which retails for $78, has caused quite a stir. The imitation bag has all the same design elements as the original, including the distinctive clasp and high-quality leather. The similarity between the two is undeniable, and this raises an important legal discussion about intellectual property and trade dress protection.

Trade dress refers to the distinctive appearance of a product or packaging that can be protected by intellectual property rights. When a design is imitated so closely, as in the case of Walmart’s Birkin bag, the original brand – in this case, Hermès – can claim that there has been a trade dress violation because the replica creates confusion in the marketplace, leading consumers to believe that they are purchasing a legitimate product from the luxury brand.

However, the case goes beyond intellectual property issues. In Brazil, the exact imitation of another brand's products can also be classified as unfair competition, a concept regulated by the Industrial Property Law (Law No. 9,279/96). Unfair competition occurs when a company uses dishonest practices, such as imitation of products, to obtain an undue commercial advantage.

By creating a product that looks identical to the Birkin bag, Walmart would not only be violating Hermès' trade dress rights, but also engaging in unfair competition by attempting to appropriate the brand's exclusivity and prestige, deceiving the consumer about the product's origin.

Unfair competition in Brazil includes actions such as:

• Imitating products in order to deceive the consumer, making them believe they are buying an original brand;

• Using names or symbols of other companies in a way that causes confusion in the market;

• Carrying out any act that harms the reputation and identity of legitimate brands.

In this case, Walmart attempted to exploit the appeal of the Birkin bag, a symbol of luxury and exclusivity, by offering a cheaper but visually identical version, with the aim of attracting consumers who do not have access to the original version. This constitutes an unfair market practice, harming both Hermès, which invests in its brand identity, and consumers, who are misled.

Finally, the 'Wirkin', a replica of the Birkin bag sold by Walmart, can be seen as a violation of Hermès' trade dress rights and, in the Brazilian legal context, as a clear example of unfair competition. Both practices undermine consumer trust and market integrity, reflecting the importance of protecting the originality and rights of brands in Brazil and internationally. Fashion Law and the laws of intellectual property and unfair competition play a crucial role in preserving brand identity and promoting a fair market.