Sotheby’s held one of the most anticipated auctions in recent memory in London on July 10. The “Fashion Icons” sale included twenty-five pieces from various houses, including Alexander McQueen, Thierry Mugler, and Christian Dior. The highlight of the catalogue, however, was a Birkin bag. Not just any Birkin: the original bag crafted in 1985 for Jane Birkin herself. The winning bid for the original Birkin – an incredible 7 million euros or 8.2 million USD, excluding fees – smashed the prior record for the most expensive bag ever sold at auction. The previous record holder had been a Hermès Kelly bag that sold for over $500,000 in 2021. With auction fees and the buyer’s premium, the original Birkin sold for $10.2 million, solidifying the bag’s place as the most expensive designer bag ever sold. Since the Birkin’s inception in the 1980s, intellectual property laws have played a central role both in its rise to prominence, and in Hermès’ ability to maintain the bag’s importance within the fashion market.
History of the Bag
The idea behind the Birkin bag was born during a chance encounter in 1981, when Jane Birkin found herself seated beside Jean-Louis Dumas, then-CEO of Hermès, on an Air France flight. After Birkin complained about her bag being unable to hold everything she needed, Dumas suggested she sketch out a design – she did so on the back of an air-sickness bag – and Hermès would bring it to life. The prototype arrived four years later: Jane received the very bag that Sotheby’s would later sell at auction, in exchange for lending her name to the design. Birkin gave Hermès her permission, and since 1985 the bag has carried the name of the woman it was created for.
Forty years later, the Birkin has become one of the most coveted accessories in fashion, and Hermès has employed specific tactics to ensure Birkins remain valuable commodities. The bag can only be purchased through Hermès via an invitation-only waitlist. Intellectual property rights have also been instrumental in allowing Hermès to protect the Birkin’s value.
The Role of Trademark and Trade Dress Protections
Hermès has utilized intellectual property law in France, where the brand is headquartered, and in the United States to protect its rights in the Birkin bag – both the bag’s name and its key design features. Under French law, Hermès owns both domestic and international trademarks in the “Birkin” mark. The brand has also held trademark rights in the bag’s design since 1984, as allowed under French intellectual property law.
In the United States, trademark law allows Hermès to protect both the “Birkin” mark and certain design features through trademark and trade dress rights. “Trademark” refers to the intellectual property rights held in a mark – words, names, symbols, or a combination thereof – used to distinguish the source of a good. “Trade dress,” on the other hand, refers to the specific design aspects that distinguish the source of a good. The requirements for trademark and trade dress registration are identical: the mark or dress must be distinctive and non-functional. In other words, consumers must recognize the mark or design as identifying the source of the good it represents, and the mark or design may not serve a functional purpose.
Hermès holds both trademark rights and trade dress rights in the Birkin bag. Beyond the trademarks Hermès holds in the brand name and logo design, the “Birkin” mark has been registered with the United States Patent and Trademark Office since 2005. This registration allows Hermès to restrict other brands from using the “Birkin” mark in connection with selling leather or imitation leather products. Hermès also holds trade dress rights in certain design aspects of the Birkin bag. Since 1993, Hermès has specifically held trade dress rights in the strap that encloses the flap of the Birkin handbag, as well as the corresponding turn-lock and pad key hardware.
The Present and Future of the Birkin Bag
Together with other intellectual property rights owned by Hermès, the brand has been able to both expand upon and protect the Birkin bag’s reputation as an iconic fashion item. Hermès has leveraged its intellectual property rights to the brand’s benefit, most notably in the 2022 trademark infringement case the fashion house brought against Mason Rothschild. Rothschild created and sold an NFT called the “MetaBirkin.” The case went to trial, and a jury unanimously concluded that Rothschild had infringed on the Hermès trademark by using Hermès’ protected “Birkin” mark. The jury awarded Hermès $133,000 in damages.
The Birkin bag is likely to remain a status symbol for the foreseeable future. Even with the waitlist system – as well as a two-bag-per-year quota for existing customers – Hermès makes an estimated $100 million in sales per year from the Birkin bag alone. The bag is searched online over 1.3 million times per month. This cultural notoriety, combined with strong intellectual property protections, allowed the Birkin bag to evolve from a sketch on the back of a sick bag to the most expensive bag ever sold at auction.
Trademark protections can be vital tools in growing a brand. If you or your company are considering registering a trademark, it is advised that you speak with an experienced attorney to understand more about registration.
