This New Birkin is Fake; Like Any Infringement Claim

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DailyMail

The Hermès Birkin Bag. Just typing those words sends a shiver of delight through my fashion consciousness. The Hermès Birkin, a leather tote ranging in price from $7700 to $150,000, is known as the handbag equivalent of a Rolex; worn to announce the achievement of the highest echelons of success.  From Victoria Beckham to Rita Ora to JLo, stars have fallen for the Birkin, while all but very few street-style fashionistas can afford the coveted tote.

Amber Rose Photo credit: Instagram via @SoniqueSaturday

A photo of Amber Rose carrying this Birkin bag (pictured above sauntering through LAX), drew the attention of those outside the Birkin’s typical demographic. It was an unapologetic fake. It was also pretty aggressive: it thinks you’re fake too. (Aside: The Kardashians are devout Birkin acolytes so the bag’s message fanned the commotion surrounding whether Amber Rose was taking a dig at Kylie Jenner for getting her kicked out of the Coachella party or if she was throwing shade at.)

It is virtually impossible for the typical shopper—even one brandishing a rubber band wad of cash, to walk into an Hermès boutique and purchase a Birkin.  In recent years, the waiting list for the bag had grown to 2 1/2 years; a wait time so ridiculous that the French company closed the list. Now there is a wait to get on the private waiting list. Unless, of course, you’re a celebrity with all of the privileges it affords.

Which, as all roads do, leads us back to online shopping. Online bag resales make it easier than ever to con consumers into purchasing a fake bag priced at tens of thousands of dollars. Baghunter, a go-to destination for secondary luxury handbags, published an article on Monday that reports on fake sellers.

Designer Sonique Saturday – Amber Rose Photo Credit: Instagram @SoniqueSaturday

More likely that not, Sonique Saturday, a handbag designer and blogger, is not the type of fake seller that Baghunter had in mind.  Saturday started making her “You Fake” bags for her friends three years ago and the designs grew from there. She now offers not only the Birkin but also “You Fake” Chanel and “Lost My Real Dior” bags.

Infringement you ask? Not necessarily.  Saturday’s Birkin is a parody.  For the uninitiated, “parody” is a defense to a claim of trademark infringement.  Parody may be asserted when a party is faced with a claim of unauthorized use of another’s trademark—such as its name or logo—in a way that is likely to confuse consumers. If it is a parody—one that uses the other party’s mark to contribute something new to create a humorous effect or social commentary—then it is not infringement. Making a few changes to an existing brand and just calling it “parody,” however, won’t save the day. The inquiry for parody is a very factual one so how a court will rule is unpredictable. Nonetheless, there is little doubt that Saturday’s use of fake Hermès bags meets the standard for parody: her design is a funny social commentary on the coveted bag. Even those who can’t afford a real Birkin, get to poke fun at it.

Parody or not, Hermès would be ill-advised to file a lawsuit against the little guy: Saturday. Lawsuits come with bad press. What would Hermès gain from such a lawsuit? Hermès imperative to maintain a brand reputation that is largely free of bad press ultimately wins the day.

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