The “Walmart Birkin”—a $50 Hermès Birkin look-alike handbag sold through Walmart—has garnered significant attention for mimicking the $12K+ bag. Consumers are flocking to the affordable alternative, but it’s also raised eyebrows in the fashion and legal worlds. Is the “Walmart Birkin” a clever dupe or an illegal counterfeit? Where do we draw the line? For designers, entrepreneurs, and students of IP law, this situation offers an interesting opportunity to explore the rules that govern look-alike products and where inspiration ends and infringement begins.

What Exactly is a Dupe?

A “dupe” mimics the look and feel of a more expensive item without claiming to be the original. In the eyes of the law, however, things get more complicated. Dupes can be lawful “inspirations” or unlawful “imitations,” depending on how closely they resemble protected features of the original. If a dupe misleads consumers into thinking it’s from the original brand, it may infringe trademarks.

Copyright and Trademark Protections

Copyright protects original works of authorship, like books, music, and visual art. It generally doesn’t cover “useful articles”—like handbags, chairs, or kitchen appliances—at least not as a whole. However, copyright may apply to design features that can be separated from the item’s function. A handbag’s shape or strap placement are not protected because they’re functional. Decorative elements, like embroidery or sculptural clasps, may qualify as art if they stand apart from the bag’s utility.

Trademarks protect names, logos, and distinctive design elements that consumers associate with a particular source. A familiar example: If you see a giant golden “M” on the side of the road, you will likely think of McDonald’s. That’s the power of trademark protection—certain shapes, colors, or designs become inextricably linked to a specific brand in the consumer’s mind.

Hermès holds trademark rights in the “Birkin” name and in the bag’s distinctive features, a concept known as “trade dress.” The Birkin’s structured silhouette, double handles, flap closure, and lock-and-strap hardware could all be considered part of its trade dress. Without the Hermès logo, a copycat design that mimics these elements too closely and causes consumer confusion could infringe on Hermès’ rights. 

The fashion industry is no stranger to these disputes. For instance, Christian Louboutin famously defended its trademark on red-soled shoes. Gucci has taken action against various brands copying its iconic green and red stripe design. 

The Walmart Birkin Debate

The Walmart handbag, sold under various third-party brands, borrows heavily from the Birkin’s signature aesthetic while avoiding using the Hermès name and logo.

But does that make it legal? Not necessarily. 

To win, Hermès must prove two things: the Birkin’s design features are non-functional, and the features have a “secondary meaning,” consumers immediately associate the design with Hermès. 

Hermès often defends its IP, claiming even slight imitations dilute the brand’s value. In 2022, Hermès sued digital artist Mason Rothschild, claiming his“MetaBirkin” NFTs infringed its trademark rights. Other brands have also seen success in this arena: Gucci and Louis Vuitton. Gucci won a judgment against Guess for infringing its logos and repeating patterns. Louis Vuitton successfully held a flea market operator liable for facilitating the sale of counterfeit goods. These cases demonstrate that while trade dress litigation can be complex, it is not futile—especially with distinctive and recognizable brand’s design features. 

Key Takeaways for Designers and Entrepreneurs

For those creating new products, the Walmart Birkin situation offers several important lessons:

• Be cautious when drawing inspiration from iconic designs; avoid copying unique elements that strongly signal a particular brand.
• Never use protected logos, names, or signature features without permission.
• Focus on adding original design elements that distinguish your work from existing products.

When uncertainty arises, consulting an IP attorney early in the design process can help avoid costly legal disputes later.

What Consumers Should Consider

While buying a “dupe” is generally legal, knowingly purchasing counterfeit goods is not. Counterfeit items often mislead consumers by using the original brand’s logos or names without permission. Buying and reselling counterfeits can have legal consequences, even for individual shoppers.

Most lawsuits focus on manufacturers and sellers, rather than casual buyers. Purchasing counterfeit goods, however, is not without consequence. Fake goods hurt innovation, fuel unfair labor practices, and erode the value and integrity of established brands. Thoughtful consumers may wish to consider these broader impacts when deciding whether to support the counterfeit market.

The Bottom Line

The Walmart Birkin may currently fall in a gray area—a savvy “dupe” walking the fine line between legality and infringement. It is unclear if Hermès will sue, but the controversy highlights bigger questions about fashion and originality. Respecting IP supports creativity and innovation—not just legal compliance.

The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.