July 20, 2011 9:34am PT by Eriq Gardner
Can Kim Kardashian Win Her Multi-Million Dollar Lawsuit Against Old Navy? (Analysis)
Kim Kardashian is reportedly quite upset over an advertisement for Old Navy (watch below) that she believes intentionally features a look-alike. The socialite and reality TV star, who would probably prefer walking around in the nude to wearing bargain-basement clothing, has filed a lawsuit against the retail chain for unspecified damages.
"I’ve worked hard to support the products I’m personally involved with and that I believe in,” Kardashian says in a statement obtained by The Hollywood Reporter. “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,” adds her intellectual property attorney Gary Hecker.
She'll hope to imitate other celebrities who have found success pushing lawsuits against brands using impostors to imply false endorsements.
Among the lawsuits over the years: Jacqueline Kennedy Onassis once got an injunction to prevent Christian Dior from from featuring a look-alike in a print advertisement; Bette Midler once sued Ford Motors into submission for using a sound-alike to voice a television commercial touting one of its automobiles. And Vanna White emerged semi-triumphant against Samsung Electronics for using a look-alike in a television commercial.
In that last case, the look-alike was a robot in a blond whig who was hosting a futuristic game show. White claimed in the lawsuit that her identity had been misappropriated to confuse the public into believing she was endorsing a tech product.
The dispute went all the way up to the Ninth Circuit Court of Appeals, which noted that if advertisers were given nine methods of avoiding a publicity rights claim, the list of no-no's "merely challenges the clever advertising strategist to come up with the tenth."
Unfortunately, judicial reluctance to create bright-line boundaries has encouraged celebrities to file all sorts of claims over the years, including over, among other things, imitated golf swings, impersonated sports vehicles, and lookalike furniture.
Kardashian's lawsuit doesn't go quite that far.
Instead, it's a basic lawsuit that we imagine would allege false advertising and the violation of her publicity rights and trademark. What matters most here is whether consumers will be shown to be confused by Old Navy's purported switcheroo, and if so, whether, as the judge in the Midler lawsuit put it, "the defendants...for their own profit in selling their product did appropriate part of her identity" by using a look-alike.
It remains to be seen whether the connection between Kardashian's likeness and the one in Old Navy's print advertisment can be easily made, and whether or not Kardashian's lawyers can turn up any documents in discovery that show Old Navy's clever advertising strategist thought about Kardashian when conceiving the advertisement. Some celebrities have struggled here. See Lindsay Lohan's lawsuit against eTrade over a "milkaholic" baby named Lindsay for an example of the ways that lawyers will sometimes stretch themselves to find a connection.
This lawsuit might be much more simple. No robots. No babies. If you didn't know anything about this print advetisment, would you quickly associate the featured woman as being Kim Kardashian? If so, was it intentional?