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Cultural appropriation and trademark

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Kim Kardashian has announced her choice of "kimono" for branding her new line of intimate wear. The choice of kimono has caused some social media stir because of the deep cultural role of the traditional robe called a kimono in Japanese culture.

Kimono is culturally loaded

Yahoo Finance's article about this issue reproduces a tweet from Yuko Kato the BBC's News Japanese editor in which Kato says she finds the choice of "kimono" for an underwear line "baffling (since it has no resemblance to kimono), if not outright culturally offensive, especially if it's merely a word play on [Kardashian's] name."

Offensiveness not a basis for rejection

In an interesting tie in with other intellectual property news, we just published a blog about the new U.S. Supreme Court case called Brunetti that invalidated part of federal trademark law that said the government could not grant a trademark that was immoral or scandalous. That case in combination with an earlier one invalidating a restriction on disparaging marks means that the U.S. Patent and Trademark Office, or PTO, in theory could not reject an application from Kardashian to trademark "kimono" for her lingerie line under any argument that it is culturally disparaging or immoral.

According to Yahoo, the PTO rejected Kardashian's previous filing to trademark "Kimono Intimates" because of other, similar registered marks. Kardashian has just filed two more applications to register "Kimono Body" and for a stylized font version of "Kimono."

Social media helps strengthen mark

Yahoo interviewed intellectual property attorneys about these applications. They point out that the social media controversy over the choice of a culturally significant word to name underwear may strengthen Kardashian's application. The media attention to the controversy helps her ability to show "secondary meaning" and "acquired distinctiveness" of the brand because consumers already associate kimono with her line of lingerie.

It will be interesting to watch this controversy play out before the PTO and in public opinion.

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