Not too long ago, we brought luxury shoe label Buscemi to your attention for its Hermès inspired footwear. At the time, we noted how the sneaker had more than a passing resemblance to the oft-heralded Birkin bag - one of Hermès's most coveted items. The Buscemi shoe has the same folded leather flaps that typically make up the closure of the Birkin bag, gold plated lock-and-key hardware, and even an identical key fob dangling from the side of the shoe. While we didn't touch on the question of why men might desire an homage to a famous women’s handbag on their feet, we did conclude that Hermès's legal team doesn't appear to be looking to go after the very obviously "inspired" sneakers. This was maybe because Hermès doesn’t produce sneakers marketed to the streetwear crowd, or ever really apply their women’s bag details to their own men's footwear. Also, the relatively high price of the sneakers combined with their limited production run maybe made it not so worth it for Hermès to spend its time and energy on the boutique label.
Perhaps bolstered by the lack of cease-and-desist letters from Hermès, Buscemi recently unveiled its first foray into the bag market. Now, we know what you might be thinking: It would be awfully daring of Buscemi to lift the design details from their most famous (only?) sneaker, which had previously been lifted directly from another company’s handbag, and throw them on their own bag, right? Like, that would be begging Hermès to finally put their foot down, would it not?
Buscemi either agrees, and is subtly courting the publicity (all press is good press?) or lives in a world without trade dress protection. And now that Buscemi is competing with Hermès for similar products - bag v. bag, as opposed to bag v. shoe before - the odds of confusion on the part of the consumer (the key inquiry in trademark infringement cases) have been raised considerably. And this is the standard Hermès would have to meet to file a trade dress lawsuit: would an ordinary consumer, and not an in-the-know fashion person like you, dear TFL reader, likely be confused by the secondary product. So, the bar then is not even to aggressively confuse people (we can all agree this is what Buscemi is doing though, right?), but to prove a likelihood of confusion exists.
To that end, let’s look at the trade dress details of the Hermès Birkin. The first is the distinctive three lobed flap design that fits around the base of the handle. This design detail has been lifted wholesale from the Hermès bag and onto the Buscemi. They’ve even added a handle to the smaller exterior pocket of the backpack so that this design detail could be included. Next up, the Birkin contains a padlock closure at its center. The Buscemi version has taken the padlock concept and used it on each of the side exterior pockets. So, not an exact match. Point: Buscemi! And finally, a key fob affixed to a leather strap. This design detail has also been lifted in its entirety from Hermès and onto the Buscemi shoe. To be completely fair, the one detail Buscemi chose to forego (because it thinks that’s how trade dress works?) is the thin horizontal strap that fits over the flaps. In Buscemi’s defense, they did leave this singular design detail off their bag.
So, by copying nearly every distinctive element of the Hermès Birkin, has Buscemi created a likelihood of confusion of the ordinary shopper? We think so. And with the rise of collaborations recently, the odds that an ordinary consumer would see this bag and think that Hermès was somehow involved are even greater. They might think it’s the new Birkin backpack (not actually a thing), a collaboration between Buscemi and Hermès , or that, at the very least, Hermès has signed off on some third party using their design details. Of course, Hermès hasn’t, and the existence of this confusion is likely more than enough to prove that Buscemi has harmed Hermès.