Hermès has obtained a favourable and noteworthy ruling in legal proceedings before the Tribunal judiciaire de Paris initiated in defence of copyright and trademark rights on the Kelly and Birkin handbag designs in both the physical and virtual worlds.

The fashion house Hermès (Hermès International et Hermès Sellier, “Hermès” hereinafter) brought proceedings before the Tribunal judiciaire de Paris claiming that the French company Blao&Co had commercialised handbags, accompanied by NFTs with images of the bags themselves, that infringed the copyright and trademark rights held by Hermès on the designs of its iconic Kelly and Birkin handbags. Hermès also claimed the infringement of its three-dimensional trademark rights on the padlock closure used in both original bag designs.

The Birkin bag by Hermès – Image from website hermes.com

Blao&Co contended that the two bag designs cited by Hermès were not eligible for copyright protection as they were made up of elements devoid of originality, owing to their common use in the luxury leather goods sector; it also contested the trademark rights invoked by Hermès, arguing that the use of the padlock as a closure is common in many high-end handbag designs, and that in any case the “NDG” brand visible on the padlock of bags marketed by Blao&Co ruled out the possibility of consumers believing that the bags originated from Hermès.

Copyright and trademark rights on the bags confirmed

On 7 February 2024 the Tribunal judiciaire de Paris held in its ruling no. 22/09210 that the Birkin and Kelly designs enjoy copyright protection, recognizing that the specific combination of formal and functional features may constitute a creative expression eligible for protection also in the case of everyday objects such as bags.

The court furthermore took the view that the padlock, incorporated into the locking system registered as a three-dimensional trademark, constitutes one of the most distinctive elements of the Hermès designs in the eyes of the public.

Intellectual property rights extended to virtual world

Regarding the NFT, the court extended to the virtual product the same rights that apply to the physical product, in a ruling that is among the first issued by a French court in a case concerning the infringement of intellectual property rights in connection with an NFT image.

It is not the first time, however, that Hermès has asserted in the virtual world the intellectual property rights it holds on its handbag designs: in 2022/2023 the French maison scored a win in a dispute over the MetaBirkin bags, one of the first cases before a US court concerning the unauthorized use of a trademark in an NFT image (read more here).

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