Namilia’s Bold SS24 Collection and Legal Battle

Namilia, a Berlin based brand known for its aesthetic of unapologetic, bold political statements, sex-positivity is often in the highlights due to its edgy and bold fashion and so it did during the SS24 Fashion week Copenhagen.

The collection titled “IN LOVING MEMORY OF MY SUGAR DADDY” reimagined the cliche of a gold digger, making play at sexist assumptions.

“Our army of bimbo sugar babies, glamorous trophy wives, and villainous vixens are breaking norms of femme sexual expression. If men are to objectify women by turning them into status symbols or a luxury product, then it is only right that the Namilia woman views him as merely a means to an end, a human bank account for her own ascension. For our deadly it-girls, being hot is a full-time job. May the man rest in peace and his money live long and prosperously.”

The collection featured a good few pieces featuring the infamous “Birkin” bag re-interpreted into wearable fashion and was the highlight, garnering a lot of attention and awe from the audience. The word “BIRKIN” was also used in the social media coverage of the collection by the brand.

However, luxury brand Hermès was not impressed.

Hermès countered with a Cease and Desist letter addressed to Namilia followed by a suit seeking injunctive relief against the brand i.e. to prevent Namilia from continuing to display images of the collection online.

In the suit Hermès claimed the infringement of the 3D Design trademark of its Birkin bag along with the infringement of the word mark “BIRKIN”.

The Frankfurt District Court Ruling: Artistic Freedom vs. Trademark Rights

The suit was brought before the Frankfurt District Court in Germany. The court in deciding the matter evaluated the “freedom of property” as alleged in Art. 12 GG, Art. 17 GR Charter in conjunction with Art. 6 EUV with respect to Hermès’s rights over his bag and the “freedom of art and expression” as etched in Art. 5 (3) GG, Art. 13 GR Charter with respect to Namilia’s collection and interpretation.

The Court ruled in favour of Namilia’s freedom of art. The court observed that Namilia “presented a production … that is thematically about female stereotypes and the acceptance of prejudices as a form of feminism. In this exaggerated social portrayal, the women carry bags reminiscent of Birkin Bags, not only as purses but also as tops, dresses, and skirts in a provocative and lascivious manner.” In furtherance of the collection, Hermès’s Birkin bag designs “serve precisely as status symbols and embody luxury,” according to the court, and the inclusion of “some defining elements, such as the characteristic buckle of a Birkin bag,” within the clothing items, themselves, “is a supporting element of the performance.”

However, that is to say, Hermès’s property rights are not completely discarded.

The court observed that in order to enjoy the benefit of artistic freedom as stated above, the court must consider various factors such as “whether the distinctive character of a mark is taken unfair advantage of, evaluation of all relevant circumstances, the extent to which the mark is known and the degree of distinctiveness of the mark, the degree of similarity of the conflicting signs, as well as the nature of the goods and services concerned and the degree of their proximity and finally exploitation of the distinctive character of a mark with a reputation is to be assumed if a third party, by using a sign similar to a mark with a reputation, seeks to [piggyback on the appeal of that mark], its reputation and its prestige without any financial consideration and without making any effort of its own.”

Noting the fact that one micro-mini skirt that bears some of the same elements as the Birkin design was seen being worn by the singer Christina Aguilera, via an instagram post of herself, the court held that the transaction was not a sale and that it had been gifted or perhaps lent to the singer.

Accordingly, the Court held that as long as Namilia was not selling the garments making use of the Birkin design, i.e. it was not financially benefiting from the collection, it could continue to show its collection online.

The court agreed with Namilia’s artistic interpretation and upheld that the Birkin served only as a reference point to the society’s symbols of luxury and was merely reinterpreted to fit in with their statement.

While the collection won’t be on sale, we hope that we can see more celebrities wear this collection so it gets the due it deserves. Meanwhile Hermès will have to make peace with the collection staying online on Namilia’s website and all over instagram.