January 17, 2012 8:45am PT by Eriq Gardner
Kim Kardashian's Reputation in Dispute as the Gap Responds to Lawsuit (Exclusive)
How much is Kim Kardashian's imprimatur really worth these days?
Facing a lawsuit that a Kardashian look-alike was illicitly used in an Old Navy commercial, parent company The Gap has initiated an investigation to see whether Kardashian's reputation has been tarnished. Among the questions being asked is why the clothing retailer Bebe decided to drop its Kardashian clothing line and Kardashian's motives for bringing this multi-million dollar lawsuit.
Kardashian filed the suit last July, alleging that by using a dark-haired model/singer named Melissa Molinaro in a TV commercial, The Gap created confusion in the marketplace and violated her rights to her name and likeness.
The attention-getting E! reality star, who enjoys more than 12 million followers on Twitter and isn't afraid to hawk products, believes that damages are substantial. Reportedly, her people hope to get a $20 million jury verdict.
Even if The Gap loses the case, the clothing retailer could get away without paying a dime. The company has successfully gotten its advertising agency's insurer, Crispin Porter & Bogusky, to provide indemnification and cover Kardashian's claims.
Safe in the knowledge that its legal exposure is limited, The Gap has hired high-powered Hollywood lawyer Louis Petrich to fight Kardashian.
In turn, Petrich has put together a plan that seeks to ferret out Kardashian's true worth as the two sides engage in a discovery process that's expected to take up much of this year. Among the documents sought by Petrich are financial records that show how much Bebe and Sears earned by making deals with Kardashian and why Bebe dropped Kardashian. The clothing retailer ditched the reality star about the same time that The New York Times published a particularly scathing review that described Kardashian's Manhattan pop-up store as a "fashion desert."
The defendant also says it hopes to find out about "Kim Kardashian's reputation as a singer and dancer."
The moves could be in anticipation of making an argument similar to those in defamation cases where a defendant asserts the plaintiff is "libel-proof," with a reputation so stained that no injury could cause true damage. Or maybe The Gap aims to show that Kardashian is no Molinaro, best known up until now for her appearance on MTV's Making The Band 3, and that Kardashian could never sing and dance like her doppelgänger.
Regardless, The Gap wishes to bifurcate liability discovery from that involving damages, with the belief that it will be able to show a judge that Kardashian's claims have no merit early on in this lawsuit. Among the arguments it aims to use to get a judge to dismiss Kardashian's lawsuit at the summary judgment phase is that the "look-alike" commercial in dispute was a small part of the overall campaign and therefore any profits attributed to a violation of Kardashian's rights are de minimis.
Both sides expect Kardashian herself to be a witness, subject to an examination by the lawyers. Also expected to testify are Molinaro and those responsible for preparing and casting the commercial.
Among the most noteworthy possible witnesses in this case is Miami Dolphins running back Reggie Bush, one of Kardashian's ex-boyfriends. The Gap wants Bush's testimony . Bush reportedly began dating Molinaro after the Old Navy commercial came out and the defendants are going to make Bush's relationship with both Kardashian and Molinaro an issue. It's unclear what legal purpose this serves, but it's further proof of how personal this case has become.
Meanwhile, Kardashian's lawyers have their own strategy for winning the case. One of the key pieces of evidence that her lawyers expect to produce are consumer surveys showing a lot of confusion by the controversial commercial. The reality star also has tentative plans to call to testify members of the media who reported about Old Navy's marketing plans as well as members of the public. Perhaps a few of Kardashian's 12 million followers on Twitter will be lucky enough to give their own thoughts.
The parties haven't yet had any settlement discussions, but are considering the use of a private mediator to facilitate talks.