In a decision dated March 25, 2026, the Versailles Court of Appeal brought a high-profile case initiated by the fashion house Hermès to a close. The core of the conflict involved a company selling handbags that were nearly exact replicas of the legendary Birkin and Kelly models. The only distinction was the humorous slogans emblazoned on the front: “Mon Hermès est à la maison” (“My Hermès is at home”) and “En attendant mon Birkin” (“Waiting for my Birkin”).

Hermès sought judicial relief on three primary grounds:

1. Copyright infringement regarding the design of the bags themselves.

2. Unauthorized use of the signature clasp (which is registered as a three-dimensional trademark).

3. Unauthorized use of the word marks “HERMÈS” and “BIRKIN.”

Initially, the court of first instance agreed that the design and the clasp had been copied but saw no issue with the slogans. However, the Court of Appeal reviewed the case and ruled that using brand names even for the sake of a joke constitutes an infringement.

Why Did the Courts Disagree?

This case is highly illustrative of how judges assess the use of the words “Hermès” and “Birkin.”

• The Lower Court’s Position: The judges initially ruled that since these names were part of longer sentences, they were no longer perceived as “the” trademarks themselves. The reasoning was that the slogans created an entirely different meaning, and a consumer would unlikely confuse a low-cost bag labeled “My Hermès is at home” with an authentic luxury product.

• The Court of Appeal’s Position: The appellate court applied a stricter rule — the so-called “double identity” principle. This applies when both the mark and the type of goods (in this case, handbags) are identical. In such scenarios, it is not even necessary to prove a likelihood of confusion among consumers.

The judges acknowledged that while the slogans were humorous and few would believe Hermès manufactured these bags, the infringer was simply “free-riding” on someone else’s fame. The manufacturer exploited a brand reputation that Hermès had invested millions into over decades, thereby damaging the fashion house’s image.

Why Does This Matter?

1. A Trademark is More Than Just a Name. This ruling reminds us that the law protects a trademark not only to prevent consumer confusion but also to safeguard its advertising and investment value. One cannot simply misappropriate a famous name to boost sales, even under the guise of a “joke.”

2. Freedom of Expression vs. Commerce. This case is a striking example of the conflict between IP rights and freedom of expression. Many defendants attempt to claim a “parody defense.” However, under European Union law, trademark rights often prevail over freedom of speech in commercial contexts. Using another’s brand for business purposes is almost impossible to justify through “humor.”

3. New Rules of the Game in Europe. It was previously thought that if a consumer did not confuse the fake with the original, no infringement occurred. However, there is a growing consensus that famous brands are entitled to enhanced protection. A similar case involving IKEA is currently before the European Court of Justice. If the court decides that “freedom of expression” can be a valid reason for using another’s brand, it could open the floodgates for similar products. Nevertheless, experts anticipate that even if such a right is granted, it will only be allowed in exceptional cases, not merely for profit-seeking ventures.

The Bottom Line: Even if the slogan on a bag makes people smile, it holds no weight in the eyes of the law. Exploiting another’s reputation for personal gain is a form of parasitism that courts are now punishing with increasing severity.

Founder of Research & Patent group Intectica, author of patent algorithms for solving problems in the pharmaceutical industry, patent attorney certified in all intellectual property objects (Patents, Design, TM), with education in chemistry and law, chief expert of the patent institution of Ukraine UKRPATENT (1997-2004). Member of international organizations, including ECTA, PTMG, UAM, lecturer and blogger.