Standing at a petite 61 inches, today’s guest post comes from top law school graduate, Fashion Blawger. As the name suggests, Fashion Blawger produces stories on fashion law, the business of fashion, intellectual property, lifestyle and much more! She graciously agreed to allow me to republish her July post from her fashion law blog, A Preponderance of Fashion. After you read the post, make sure you check out her blog and follow her on twitter!
About Beachkin, The Hermès Infringing Beach Birkin
Hermès has been the topic of many posts here. Most of these past topics have covered fashion law cases filed by Hermès. Today I bring you a product that is infringing but has not (yet) been the subject of a lawsuit: the Beachkin, a product of a company named Hang2dry.
As you can see in my previous post about Hermès fighting infringers, Hermès has a trademark on the shape of its Birkin.
Trademark infringement and dilution are present here. Trademark infringement is present when goods use an identical or substantially similar mark of an existing trademark. Trademark dilution is when a famous mark faces a lessening ability to identify and distinguish its goods.
Hermès’s Possible Claims Against Beach Birkins
The name of the bag makes use of the familiarity of the Birkin name. This kind of clever attempt at word play can get Hang2dry in trouble. Attorneys for Hermès could potentially claim that Hang2dry sought to use an unfair advantage of the fame and reputation of the Birkin bag.
A weaker but also available claim is that the similarity between the Beachkin name is dilution by blurring because its similarity to Hermès impairs the distinctiveness of the famous Birkin name.
A stronger dilution complaint against Hang2dry is dilution by tarnishment. Because the infringing products are made of inferior materials and quality inspections than would be used by Hermès. If people believe this fashion house licensed the Birkin with inexpensive goods, its reputation for quality and commercial integrity would be tarnished. Such an argument would be akin to Hermès’ claims against the canvas totes that sported Birkin images.
The Beachkin design clearly copies the protected design of the Birkin.
Also, Instagram users posting photos with the infringing bags (like here, here, and here) are dressed in brand names, making it further plausible that onlookers may link these products as a licensed Hermès creation.
In a trademark infringement complaint, a mark owner’s attorneys should request an injunction to stop sale of goods. In the prayer for relief, a fashion lawyer should request the court preliminarily and permanently enjoin the defendants and participating parties from directly or indirectly making unauthorized use of the owner’s marks.
Prayers for relief in trademark actions also commonly request the deliver and/or destruction of all goods made along with the means to make them.
I admit, it would be sad (but probably necessary) and probably toxic, to burn Beachkins.
Beachkins remind me of the limited edition vinyl “un voyage au pays des merveilles” Kelly bags created for an Hermès exhibition in Japan in 1997 (see it here). The fact that Hermès has not filed a fashion law case against Hang2dry may just mean that they have not become aware of the infringement.
What say you? Leave a comment below.
Photo Credit: Alligator & Birkin image from FashionGoneRogue via Tyler Shields