French Fashion House Hermes Files Suit Against Online Retailer Alleging Trademark Infringement

The fashion industry’s battle against fake designer handbags wages on. In a five-count complaint filed January 28, 2011 in the US District Court for the Southern District of New York, French high fashion house Hermes International alleges that online retailer Thursday Friday is selling cotton tote bags featuring color photographs of its trademarked, iconic Burkin Bag. Hermes alleges false designation of origin, trademark infringement, and dilution under the Lanham Act, various state law claims, and seeks preliminary and permanent injunctive relief.

Hermes is world-renowned for its high quality, luxury goods and services in the fields of leather goods, apparel, fragrances, fashion accessories and home furnishings. Its famous, handcrafted Birkin Bag is recognized worldwide because of its unique design and distinctive features. Prices for Birkin Bags start at $6,000, but demand is high despite the cost. From 2002 to 2008, Hermes sold more than 30,000 Birkin Bags in the United States, representing total revenue exceeding $200 million.

The Birkin Bag does not display any visible word trademark on its exterior or on any hangtags. Hermes contends, however, that the design of the bag has obtained secondary meaning and become a famous trademark because of its numerous portrayals in the media and marketplace. And according to the complaint, the closure of the Birkin Bag has become so recognizable and distinctive, it is a registered US trademark.

Thursday Friday, an Internet retailer that promotes itself as “into accessible high style,” sells the Together Bag, a canvas tote displaying full color photographs of what appear to be a genuine Birkin Bag on five surfaces – front, back, two sides, and bottom. According to the complaint, Thursday Friday “is simply riding on the reputation and recognition of the Birkin Bag to sell its otherwise generic tote bag.”

The complaint apparently has not yet achieved its intended effect. As of February 8, 2011, the infringing "generic tote bag" is still available on Thursday Friday’s website.