Kim Kardashian has recently filed suit against Old Navy for unspecified damages regarding an advertisement that she believes intentionally features a look-alike. Kardashian, (pictured left) alleges that Old Navy’s ad campaign was made with an intention to confuse the public into thinking that it was Kim appearing in the commercials and not actress/dancer Melissa Molinaro (pictured right). Kardashian told the Hollywood Reporter, “I’ve worked hard to support the products I’m personally involved with and that I believe in.” Her intellectual property attorney Gary Hecker added, “Kim Kardashian is immediately recognizable, and is known for her look and style. Her identity and persona are valuable. When her intellectual property rights are violated, she intends to enforce them.”
The Gap Inc., which owns Old Navy, has responded by hiring Louis Petrich, a Hollywood lawyer who specializes in intellectual property and First Amendment issues. Petrich’s strategy claims that using a lookalike is protected under fair use and that all of the advertising is protected by the free speech clause of the First Amendment. Per the Reporter, The Gap claims that the First Amendment protects its advertising activities “inasmuch as such activities include significant informational elements and/or constitute a transformative use.”
It appears Kardashian hopes to imitate other celebrities who have successfully brought lawsuits against brands for allegedly using imposters to imply false endorsements. One such case was when Vanna White sued Samsung Electronics for using a look-alike in a television commercial. According to the Hollywood Reporter, the look-alike wore a blonde wig and was hosting a futuristic game show. White alleged that her identity was misappropriated and that the public was therefore confused into thinking she was endorsing the tech product. The dispute went all the way up to the Ninth Circuit Court of Appeals, which noted that if advertisers were given a list of nine methods to avoid a publicity rights claim, that it “merely challenges the clever advertising strategist to come up with the tenth.”
Unfortunately, judges have been reluctant to create bright-line boundaries which has encouraged celebrities to file all sorts of claims like for an imitated golf swing or even a “sound a-like,” as in the Bette Midler v. Ford Motors case. However, Kim’s case appears to be a basic lawsuit that is likely to allege false advertising and violation of her publicity and trademark rights. The issue will be whether consumers are confused by Old Navy’s use of the look a-like and as the judge in Midler’s case said, whether “the defendants…for their own profit in selling their product did appropriate part of her identity” by using the look a-like.
We will have to wait and see whether the connection between Kardashian’s likeliness and the look a-like can easily be made and also whether Kardashian’s attorneys can come up with any documents during discovery that could possibly show Old Navy’s advertising strategist thought about Kardashian when creating the particular advertisement.
