You can’t simply walk into Hermes and buy a Birkin bag. This pair is suing instead

Hermes introduced the bag in 1984. It is named after Jane Birkin, the late French film star, singer and muse, who supplied the idea of its general design to Hermes CEO Jean-Louis Dumas while seated beside him on an Air France flight. In the origin story, she is said to have sketched her idea on a paper sick-bag.

The process of creating a Birkin, as the handbag is known among connoisseurs, takes a reported 18 to 20 hours and is said to be completed by a single craftsperson. Hermes does not disclose how many it produces annually.

A new one retails for upward of $US10,000 ($15,000); vintage examples have fetched as much as $US450,000 at auction. Another popular Hermes bag, the Kelly, is named after film star (and Princess of Monaco) Grace Kelly.

At the heart of the lawsuit is the practice of “tying” – that is, the selling of a certain item to customers on the condition that they buy another product from the same business.

“The law says it’s illegal,” said Shaun Setareh, a lawyer involved in the lawsuit on behalf of the two plaintiffs. “They’re preconditioning buying other products – scarves, belts, shoes, perfume, jewellery – before they give you the opportunity to buy a Birkin or a Kelly.”

Douglas Hand, a lawyer in New York who works with fashion brands including Stella McCartney and Rag & Bone, said in a phone interview that the definition of “tying” was somewhat amorphous, and that the law allowed some room for goods to be sold in a bundle.

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A judge, he said, is also more likely to rule that a sales practice violates the law when the item in question can be deemed a necessity. An example might include a drug company that predicates access to lifesaving medication only to those who buy it along with other products.

“There’s not as many reasons for why every consumer needs access to a Birkin bag or any specific luxury item,” Hand continued. “What the consumer wants out of that is access to class, access to exclusivity and access to a club that you gain entry into.”

Nevertheless, he acknowledged that the distinction between bundling and illegal tying could be tricky to parse.

“That’s why the outcome will be very, very important to Rolex, Porsche and every luxury brand that has predicated access to the most exclusive items on purchasing less exclusive, unrelated items,” Hand said.

After all, so much of the demand for luxury goods – whether it is a Ferrari SF90 or a Rolex Cosmograph Daytona – results from their being in short supply.

“It makes the shopping experience exciting and alluring,” said Jacek Kozubek, a luxury watch dealer, whose site, Tropical Watch, is devoted largely to vintage Rolexes.

During the pandemic, Kozubek decided that he wanted to get a Birkin for his wife.

“I spent $60,000 on stuff at Hermes before I could get one,” he said, listing purchases including shoes, scarves and home goods.

Toward the end of his spree, Kozubek said he went into the Hermes store on Grant Avenue in San Francisco and heard his salesperson utter the magic words: “Would you like to see a Birkin?”

Moments later, he found himself in a private room, nodding approvingly at a midsize Birkin in classic black with gold hardware. He said that he had walked away from the store with the belief that his previous purchases had helped him obtain the grand prize.

Unlike the plaintiffs in the lawsuit, Kozubek said that he believed there was nothing untoward about how the sale had come about, given that Birkins trade on the secondary market at far above their list prices.

“Hermes is keeping the prices low compared to the market value,” he said, “so when they allocate a bag, they want to give it to someone who loves it and supports them.”

“You don’t get the coolest things in the world right away,” Kozubek continued. “If a Birkin was super accessible, there would be no demand for them. If you could just buy it, it wouldn’t be fun. No one would care. No one would want them.”

So the thing that makes a Birkin a Birkin is the fact that most people can’t get one?

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“Hell, yeah!” he said, inserting a coarser descriptive.

This article originally appeared in The New York Times.