Page B1 of today’s Wall Street Journal: long article on Hermes and its fight against the Jelly Kelly (background here). Good photographs illustrating side-by-side comparison of Hermes Birkin bag and features in rubber ‘knock-offs,’ such as belt clasps and grommets.

Interesting point: Hermes sells its Birkin bag only to those on a waiting list that is now closed.  I interpret this to mean that Hermes could not have lost any sales as a result of the Jelly Kelly. 

So if plaintiff can sell its good at full price and at full capacity despite defendant’s infringing copies, is there actionable damage?

If it infringed plaintiff’s mark, defendant’s profits are ‘ill-gotten gains’ subject to an accounting under either an unjust enrichment theory or a punitive theory.

However would a Judge Posner disciple argue that this is neither unjust nor something worthy of punishment.  Defendant was merely filling a previously un-met consumer need, and because plaintiff received its full price at full capacity, neither the consumer nor the plaintiff was damaged?  Or, in this case, was Hermes foreclosed from offering (or licensing) its own lower-priced bag as a result of defendant’s activities?  I suppose that Hermes can allege damage to the discounted future value of the Hermes brand (if the company was sold, it would possibly receive a lower price because of the threat of these jelly bags to future earnings).  

Your thoughts please but attention hard-core plaintiffs’ lawyers: don’t write in merely to yell at me – I’m just trying to start a conversation.