Cultural appropriation and trademark

On Behalf of | Jul 3, 2019 | Trademark Law |

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.