Hermès has lost in a battle against the maker of widely-popular lookalike bags in South Korea. After Hermès filed suit in November 2015, the Seoul High Court recently ruled against the Paris-based design house, holding that Seoul-based brand PLAYNOMORE’s cartoon-eye bags - which make use of its Birkin and Kelly bag trade tress - do not violate Korea's Unfair Competition Prevention and Trade Secret Protection Act.
According to Hermès’ suit, PLAYNOMORE’s bags – which bear a striking resemblance to its famed Birkin and Kelly styles – run afoul of the Unfair Competition Prevention and Trade Secret Protection Act, which prohibits, “causing confusion with another person's goods by using signs identical or similar to another person's name, trade name, trademark, container or package of goods or any other sign widely known in the Republic of Korea as an indication of goods, or by selling, distributing, importing or exporting goods with such signs.”
Similar to a trademark or trade dress case in the U.S., Hermès essentially argued that in recreating the trade dress in its most famous bags – namely, the distinctive three lobed flap design that fits around the base of the handle, padlock closure at its center, key fob affixed to a leather strap, and thin horizontal strap that fits over the flaps of its Birkin bag, for instance – PLAYNOMORE was in breach of Korean unfair competition law.
Given the strength of Hermès’ trade dress on a global scale, it seemed as though this would be an easy win for Hermès, and last year, the lower court did, in fact, side with Hermès, ordering PLAYNOMORE to pay 100 million won ($87,336) to Hermès. However, that decision was overturned on appeal, with the Seoul High Court holding that partial similarity in design was not enough to substantiate the claim that PLAYNOMORE’s bags were in violation unfair competition laws.
The court also held that PLAYMORE’s unique “eyes” design was a key element of the bags’ identity, and the subsequent popularity of the products among consumers. According to the decision, “Taking into consideration the creativity, uniqueness, the details of production, and the cultural values of the bags altogether, PLAYNOMORE’s products have achieved their own version of originality and aesthetics by incorporating various rare images together.”
Speaking of the design for the bags, PLAYMORE’s founder, Kim Chaeny, said: “While marketing and selling the bags, I’ve never mentioned the name Hermes or its Birkin or Kelly bags. I knew that the design was used by the brand, however, I was aware that this design has already existed in the 1700s well before Kelly or Birkin and that I would have no legal issues … I never even thought about riding on Hermès’ reputation.”
As for the outcome of the case, she noted: “We will focus on the brand from now on. Hopefully there will be no more imprudent lawsuits against small- and medium-sized South Korean companies from established brands.”
The case has been appealed to the Korean Supreme Court.