The Latest: Kim Kardashian is Still Locked In A Legal Battle With Missguided Over The Use Of Her Image And Name
Recent court documents filed this week, reveal that Kim Kardashian is seeking a default judgement entitling her to damages in excess of $5 million from retailer Missguided for their ‘systematic’ use of her identity or likeness as means to confuse or mislead consumers into the belief that an affiliation exists between the parties.
After receiving the original complaint in February of this year, in which Kim Kardashian sought damages of an amount “no less than $10 million”, Missguided (represented by Brandsmiths, London), have “strategically defaulted” in this case with their representatives allegedly confirming that neither their US nor UK entity would be responding to the complaint filed.
Consequently, on June 10th 2019, Kardashian’s representatives (Kinsella Weitzman Iser Kump & Aldisert LLP, California) have now submitted a motion for a default judgement in their favour, requesting that the court award $5,000,000 in damages – the ‘conservatively estimated’ market rate Kim would have charged had a legitimate commercial or licensing relationship existed – plus $103,600 in legal fees.
The claim itself rests upon the contention that Missguided have wrongfully appropriated Kim Kardashians name, image and persona in a manner which infringes both her right of publicity and also her rights as a trademark holder. With regards to the latter, Kardashian claims that Missguided have used her registered trademarks – namely “KIM KARDASHIAN” and “KIM KARDASHIAN WEST” – or confusingly similar marks in a way “likely to confuse consumers into believing she is affiliated with, or sponsors or endorses, Missguided and its website and products”, going on to reference an article written by The Fashion Law entitled “Kim K and the Copycats: Fast Fashion at its Quickest or a Marketing Ploy in Disguise?” (posted on 11 February 2019) Kim’s legal team argue that the article’s reference to the speed with which Missguided had been able to post images of a knock-off version of the gold dress worn by Kardashian and the authors proffered that this may well be the result of “a coordinated marketing ploy between the mega-influencer [Kardashian] and the millenial-centric fashion company.” As evidence, as per the complaint that the “consuming public has come to the mistaken conclusion that she is affiliated with Missguided and is working hand in hand with the company to create “fast fashion” versions of her clothing.”
With regards to the claim stated under the right of publicity, the “wholesale” use and appropriation of Kim’s identity (which can include name, image or likeness amongst others) without her consent and for commercial purposes is said to be the “epitome of a right of publicity violation” to which no First Amendment defence can be applied. As evidence of these claims, Kardashian’s representatives produced a number of screenshots from Missguided’s website and social media platforms in which they have shared pictures of Kim and her family often alongside calls to action such as “shop this fire dress” and “shop kim k.” Many of these images have also been edited to include Missguided branding and/or the addition of Missguided’s products.
Interestingly, the existence of this right to publicity under both common and statutory law may be the reason that action has been pursued in California rather than in the United Kingdom (the primary place of business for Missguided), where no equivalent right exist. Despite Kardashian’s lawyers putting forward a number of arguments supporting their use of the Californian forum - namely that Missguided direct their commercial activities towards the US more generally, but specifically California through sponsoring Coachella events and targeting attendees of the Indio festival – this case still gives rise to questions of forum shopping and opens the door to interesting considerations as to how this new breed of influencer would be protected should a similar action be raised before the UK judiciary. (Albeit still, history shows us that in the UK celebrities may be able to obtain some legal relief under the common law doctrine of passing off – touted as the UK equivalent of the U.S right of publicity in pursuit of protecting the commercial value of a celebrity personality).
In order to establish that the monetary damaged sought were appropriate in relationship to the seriousness of the claim, Kardashian and her legal team provide statements attesting to prior and on-going commercial relationships valued at $300-500k for a single Instagram post as well as long-term licensing agreements with a “wearable consumer goods” manufacturer under which Kardashian receives $6 million per annum and is granted a “significant equity interest” in the company. On this basis, they contend that Missguided’s continual use of Kim’s trademarks and likeness has a “fair market value” of “no less than $5 million, and Kardashian would never have licensed [this] use of her persona for less.”
It is further claimed that the conduct of Missguided has “damaged Kardashian’s credibility”, diluted her brand and “threaten[ed] her ability to negotiate endorsement deals with law-abiding companies that seek her support, who will be less inclined to hire Kardashian if she is perceived by the public as indiscriminately endorsing a multitude of brands.” In her own statement, Kim claims that she “work[s] very hard to ensure that [her] brand means something to my fans and to the public, who view the use of my name as the stamp of approval” and states that the loss of her ability to oversee product associations discourages companies who seek exclusivity in their deals with her. She goes on to state that Missguided’s posts have damaged her credibility not only insofar as they serve to contradict her previous criticisms of the “fast fashion” industry but also through the suggestion that she has “secretly collaborated” with them to replicate the designs she wears (she states she would “never betray” the designers she works like this).
In addition the monetary damages sought, the motion also requests that the Court grant a permanent injunction to prevent any future use of Kim’s “name, images, likeness, persona, and trademarks in connection with any product or service sold, marketed, or distributed by [Missguided]”. It is argued that Kardashian has been irreparably harmed through the loss of control of her reputation and the confusion of the pubic as to her relationship or affiliation with Missguided and that the award of damages alone does not amount to an adequate remedy as it does not prevent any future or continuing violate of her rights. At this stage, no punitive damages have been sought however Kim’s lawyers do make a point of suggesting that the $5,000,000 + fees claimed is a “fraction” of the potential recovery that may be awarded in a trial held on the merits of the case.
And now we wait …
With the motion for default judgement now filed, the Court may rule based solely on the paperwork submitted or the case may process to Court proceedings, at which point Kim may find herself fighting her case before a judge … So, who knows, perhaps as this unfolds we will get a sneak peek into Ms Kardashian West’s new legal career sooner than we thought.
Written by guest writer Stephanie Kelly