If you want to capture the range of antitrust in (fashion) commerce now is the perfect moment. A U.S. court recently ruled that Hermès did not break antitrust rules by keeping its Birkin bags scarce. Meanwhile, Germany’s Federal Cartel Office (FCO) has launched a probe into Temu’s pricing strategies, and the European Commission (Commission) has just fined three luxury fashion brands over EUR 157 million for engaging in anticompetitive pricing practices. Same area – (fashion) commerce – utterly different facts, legal theories, and authorities involved.
The Birkin bag 101
We begin with the Hermès case, given the Birkin bag’s iconic status. Aside from the price tag (starting from around EUR 10,000 up to six figures), there is one big problem: it is not sold online, and you cannot simply go to a store and take one of those home (you might know the feeling from the watch industry…). Access runs through sales associates, who curate who is “qualified” to buy. Even in-store Birkin bags are not displayed, and they are shown – if at all – in private to customers.
According to the complaint, sales associates nudge would-be Birkin buyers to spend first on “ancillary” goods like on shoes, scarves, jewellery, ready-to-wear and the like, with the promise (or hope) of getting “worthy” enough to be offered the bag later. That lines up with what the press and explainers say about Hermès clienteling model. However, there appears to be no formal policy setting minimum spend thresholds, at least none made public.
(Side note: even if you are among the chosen, you typically can buy only the specific model shown to you – no choosing size, leather, or hardware.)
The complaint: a classic tying case?
Against this backdrop, in March 2024, two plaintiffs brought a class action against Hermès under the California state laws and – central here – Section 2 of the Sherman Act (the “monopolization” prohibition).
The plaintiffs framed a straightforward tying claim, the Birkin as the tying product, and a bucket of Hermès “ancillary products” as the tied products. The alleged condition was practical, not contractual: to “qualify” for a chance at a Birkin, you first spend heavily on other Hermès goods. They alleged consumers were steered – indeed coerced – into purchases. In this regard, the plaintiffs also pointed to the compensation structure of the sales associates (3% commissions on ancillary items, 1.5% on non-Birkin handbags, and no commission on Birkins) as fuel for the alleged scheme.
On market definition, the complaint posited a tying market of “elitist luxury handbags” in the U.S., claiming Hermès held 60-75% and thus market power. For the tied side, the plaintiffs essentially swept “everything else Hermès sells” into one market from scarves to homeware.
Why the complaint fell apart
Having already given the plaintiffs one shot to amend the complaint, the court still deemed the pleading “purely speculative” (see the order here). On September 17, 2025, it dismissed the federal antitrust claims (this time with prejudice) and declined supplemental jurisdiction over the state-law claims.
Even the court assumed for “present purposes” tying practices as per se illegal, the plaintiffs still failed to plead a proper tying market, Hermès’s power in it, or a distinct tied market. Their “elitist luxury handbags” market definition was “a far cry from properly defining a relevant market,” stitched from “random soundbites”; without a coherent Birkin market, even an alleged 60-75% share did not show market power (market share ≠ market power). The tied market – essentially everything else Hermès sells – was a “kaleidoscope” of non-substitutable goods, with no plausible competitive harm.
Ultimately, the court held that even if the French luxury design house “reserves the Birkin bag for its highest-paying customers, that in itself is not an antitrust violation”, the practice is rather a business decision. Put bluntly, the plaintiffs might have come closer to their dream of a Birkin by spending their legal budget on additional Hermès purchases instead of litigating. Undeterred, as of October 7, 2025, the plaintiffs have taken their case to the Court of Appeals, seeking to overturn the order (see the notice of appeal here)
Luxury, meet the price police
But not only in the U.S., luxury fashion seems to be area of interest for antitrust practitioners. Just recently, the Commission fined the fashion companies Gucci, Chloé and Loewe over EUR 157 million for resale price maintenance (RPM) (see press release here). All three companies acknowledged the infringement and cooperated with the Commission, leading to fine reductions between 15-50%.
In practice, the brands curbed retailers’ freedom to set prices – online and offline – by capping discounts, restricting when sales could run, and leaning on the brand stores not to stray from “recommended” prices. To ensure compliance with their pricing policies, the three fashion companies monitored the retailers’ prices and followed up with deviating retailers.
According to the Commission, although many affected retailers stock all three brands, the companies acted independently. Thus, there was likely no evidence of coordination to also support a horizontal infringement.
Ultra-discount, ultra-control? The FCO probes Temu’s pricing
Now jump to the other end of the price spectrum. Last week, the FCO announced the opening of proceedings against Temu (Whaleco Technology Ltd.) (see press release here). Temu is a cross-border, ultra-discount marketplace that connects mostly China-based sellers to EU/U.S. consumers with direct shipping and aggressive price promotions; the platform has also been open to German merchants for about a year now. Temu does not sell on the platform itself. The FCO suspects influence on marketplace sellers’ pricing in Germany, possibly even setting the final selling prices itself. As reported in the press, Temu’s only statement to date is that it complies with the law.
Final stitch
Whether at the luxury or low-cost end, the same antitrust rules apply. Antitrust asks about the competitive effects, not how expensive the goods are (except, of course, where the relevant conduct itself targets the price). With that framing, enforcement in (fashion) commerce is building up on both sides of the Atlantic, driven by both regulatory action and private litigation. While the tying case against Hermès ultimately failed, it did so because of shortcomings in the complaint, not a rejection of the underlying antitrust theory of tying. Meanwhile, the Commission’s fines underline that RPM remains a high-risk vertical restraint – just as we anticipated in our post a few weeks ago.
Photo by Zoshua Colah on Unsplash
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