The Supreme Court of Denmark has tried a case concerning one of the most expensive and prestigious handbags for women – a Hermès Birkin bag which in Denmark retails between DKK 50,000 and DKK 350,000 depending on the specific model.
Hermès is one of the leading luxury brands and the famous Birkin Bag is a registrated trademark. Several features, especially the locking device of the bag is registered as a trademark in class 18.
Bags produced and sold by the Danish celebrity couple Rudi and Harald Nielsen was by Hermès seen to infringe not only Hermès’ trademark rights but also their copyright in the bags. Thus, Hermès brought action against Rudi and Harald Nielsen.
During the trial two surveyors stated that the Birkin bags enjoyed copyright protection primarily due to the special closing mechanism.
Based on these facts Hermès argued that the bags sold by Rudi and Harald Nielsen constituted a violation of the copyright.
The Supreme Court found that only industrial design is copyright protected against imitations. However, it was not the situation in this case.
Due to this conclusion the Supreme Court did not bother to decide whether Birkin Bag was a copyright protected product or not. At the same time, the Supreme Court stated that due to the differences in material, quality and price there was no risk that the bags could cause confusion.
The Court dismissed the claim against Rudi and Harald Nielsen.
The judgment emphasizes that especially functional industrial design cannot be expected to be widely protected by the courts, even though, the products are prestigious and of high quality. The judgment confirms that the evaluation is not based on individual elements but on an overall assessment of the product.
The entire judgment can be found on:
However, the Supreme Court judgment is only available in Danish. Lund Elmer Sandager would be pleased to provide a translation and further advice on the judgement or similar issues.
David Frølich
