A few months ago, Kim Kardashian brought a suit against Old Navy for using, Melissa Molinaro, a lookalike model in their "Super Cute” TV commercial, and essentially, appropriating her identity. At the time, Kardashian's lawyer said, "Kim Kardashian is immediately recognizable, and is known for her look and style."
While there hasn't been much news about this since then, Gap [owner of Old Navy] is speaking out loud and clear via Louis Petrich of Leopold, Petrich & Smith. They have a First Amendment right and want Kardashian's lawsuit thrown out! The Gap's key argument: its advertising is protected by the First Amendment "inasmuch as such activities include significant informational elements and/or constitute a transformative use."
This brings to mind the White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) case, in which known TV personality, Vanna White, sued Samsung for using a robot in it’s advertisement that resembled White and was conveniently placed on a set similar to Wheel of Fortune. The US Court of Appeals for the Ninth Circuit held that the characterization in the commercial pointed to the identity of White. While the Court found that this was an unacceptable infringement on White's right to publicity, this decision has been strongly criticized for going too far in protecting the right to publicity.
Why is this case such an important precedent for Kardashian? Samsung never actually referenced Vanna White's name, and yet, the court found that it was enough for Samsung to have represented her overall image via the robot and the Wheel of Fortune reference. So, even though Kim's name was never used by Old Navy, she may still have a chance.