Models like Cara Delevingne are the perfect depiction of a new age of models that have learned how to brand themselves on a large scale. Now more than ever, today’s fashion models recognize the economic value of their persona and the legal rights affixed to it. Recently Delevingne was added to a growing list of catwalk stars that have decided to seek trademark protection for their names. In addition to the protections afforded by trademark law, the right of publicity is a legal avenue for models to protect against unauthorized uses of their image and likeness. Now that personal branding is such an integral part of a celebrity’s career, it is increasingly important that models, like Cara, actively police their trademark and monitor misuses of the image.
Violations of a celebrity’s trademark and right of publicity have become most prevalent in the fashion industry. Brashy Couture, for instance, is one of many apparel brands that have toed the line of illegality in their production of certain articles of clothing. The Stockholm-based company, which was co-founded by Jacob Hägg in 2010, produces a wide collection of clothing that is sold in stocked by the likes of Urban Outfitters, Nasty Gal, and ASOS. In its collection of novelty t-shirts, Brashy Couture features a stark white top with the word “Delevingne’d” printed on the front. Admittedly, in the age of Brian Lichtenberg’s “Homies”/Hermes "parody" t-shirts, Brashy Couture’s “Delevigne’d” top seems almost commonplace at this point. However, it does present relevant questions about the legal issues involved in the commercial use of a celebrity’s name.
It would be an understatement to simply categorize Cara Delevigne as model; it would be more appropriate to describe her as a personal brand. Not to be confused with her trademark, branding refers to the combination of both tangible and intangible elements (i.e. trademark, image, reputation) that make Cara Delevigne distinctive and memorable to a consumer. Personal branding encompasses things like one’s right of publicity and trademark. Therefore, protecting the intellectual property rights related to your persona, image, and trademark are all tools in the process of developing a strong brand image. The potential effect on Cara’s personal brand makes Brashy Couture’s use of her name legally problematic to terms of her trademark and right of publicity.
In the United States, the right of publicity gives a person a legal right to protect their name, likeness, and persona from unauthorized commercial use. Essentially, the right of publicity could be anything that evokes identity. Additionally, the Lanham Act, the federal trademark statute, provides protection in the event that a person’s image is used to falsely endorse or advertise a product or service. On the other hand, a trademark is a recognizable design, expression, or sign that identifies a particular product or service. Brashy Couture’s use of her trademark would be considered infringing if a customer would likely be confused about Cara’s relationship/affiliation to Brashy Couture.
Assuming that Cara did not give the company permission to use her name in this way (which it is likely safe to assume is the case here), Brashy Couture could face an uphill battle to prove that their shirt would not be an infringement of her trademark, an unauthorized use of her name in a commercial context, or false endorsement. However, the company is not completely without recourse in this matter. In their defense, the company could argue that the transformation of “Delevingne” into a verb is free speech (and thereby, covered by the First Amendment) or is unlikely to confuse customers about Cara’s affiliation to Brashy Couture, the latter of which would be used to defend against a trademark action. Despite this defense, the odds at this point seem heavily stacked in Cara’s favor.
While Brashy Couture’s t-shirt may not seem harmful to Delevingne on its face, think how much of a celebrity’s livelihood is tied to his personal brand. Today, models have more of a financial stake in their names, and as a result, the unauthorized exploitation of the legally protected aspects of their brand could be substantially costly to them. Brashy Couture should probably be prepared in case Cara decides that this seemingly self-effacing shirt treads to close to the line.
Taylor Moore is currently a second year student at Howard University School of Law in Washington, DC. During law school she has worked as a research assistant to professors and attorneys in the field of intellectual property.