Earlier this year, Kim Kardashian called foul on Old Navy. The reality television star filed a whopping $20 million lawsuit against the mass-market apparel retailer for enlisting a lookalike model for one of its television commercials. In the strongly-worded complaint filed in a Los Angeles court in July, Kardashian’s counsel asserted that by using Canadian singer Melissa Molinaro in its “Super Cute” commercial, Old Navy knew exactly what it was doing: it was appropriating her identity.
To be exact, Kardashian’s counsel asserted that “Kim Kardashian is immediately recognizable, and is known for her look and style,” and that Old Navy is on the hook for engaging in false advertising, trademark infringement, and the violation of her publicity rights and trademark in connection with the less-than-a-minute-long commercial.
While the case has quietly been making its way through the early stages of litigation, Old Navy’s parent company Gap recently responded to Kardashian’s complaint, arguing – in its formal answer – that its “advertising activities are protected by the First Amendment … inasmuch as such activities include significant informational elements and/or constitute a transformative use,” and thus, wants the case tossed out of court once and for all.
As for the case as a whole, it brings to mind an earlier one: White v. Samsung Electronics America, Inc., in which known television personality Vanna White sued phone-maker Samsung for using a robot in one of its advertisements that resembled White and was conveniently placed on a set similar to “Wheel of Fortune.” The U.S. 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 an individual’s right to publicity.
Why is this case such an important precedent for Kardashian? Samsung depicted White as a robot and never actually referenced her 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.
UPDATE (August 29, 2012): Following mediation, the two parties have settled their suit out of court. The terms of the settlement are confidential, but as THR notes, “the Old Navy commercial in question appears to have been taken down from YouTube, surviving only in all the news reports on the subject.”
“The lawsuit was resolved to mutual satisfaction of both parties, but beyond that it’s the only statement we have,” according to Kardashian’s attorney, Gary A. Hecker.