Kim Kardashian's Trademark Fight An Exercise In Everything Busted About Trademarks

This should not work this way.

By Joe Patrice

onJune 28, 2019 at 11:44 AMJune 28, 2019 at 11:10 AM

When you think of a kimono, do you think of Kim Kardashian?

Probably not, because kimonos are a traditional garment dating back to at least the 8th century. We pretty much all know what they look like. And they do not look like Kim’s new line of bodywear. Yet she’s trying to name her line “Kimono” because it starts with “Kim” and it’s a clothes thing… I guess.

As you might imagine a lot of people are concerned about this cultural appropriation:

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Nice underwear, but as a Japanese woman who loves to wear our traditional dress,👘 kimono, I find the naming of your products baffling (since it has no resemblance to kimono), if not outright culturally offensive, especially if it’s merely a word play on your name. Pls reconsider

— Yuko Kato (@yukokato1701) June 26, 2019

But racial disparagement isn’t an impediment to trademark these days so it’s only the court of public opinion that could convince the budding lawyer to change course and find a new name for her wearable wares.

Unfortunately, the counter-intuitive world we live in means Kardashian’s tenuous claim upon the “kimono” mark is potentially stronger because people are upset about it.

“By creating a social media uproar she has actually strengthened the case that people will recognize the word ‘Kimono’ with her own line of clothing and her brand,” [trademark attorney David] Leichtman said.

Of course, not everyone is equally suited to create as much impact as Kardashian is in a single tweet, considering her 61 million followers.

“The reason why Kim Kardshian is uniquely positioned to acquire secondary meaning is because consumers now know to connect the brand to her,” explained Joel MacMull, an intellectual property attorney at law firm Mandelbaum Salsburg. “It’s bonafide acquired distinctiveness, people will say, ‘I know ‘Kimono’ and I know it relates to Kim Kardashian.’”

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Getting people angry at a weak mark should not be the pathway to turning a weak mark into a strong mark. That’s just legally sanctioned upward failing. And yet here we are.

Why the backlash over Kim Kardashian trademarking ‘Kimono’ strengthens her legal case [Yahoo Finance]

Headshot Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.