Trademark or Cultural Appropriation?
Kim Kardashian is in the news again, perhaps she never really left the news, but this time for a Trademark issue. She is trying to Trademark the name KIMONO for her shape wear line. A Kimono is a traditional Japanese garment. Although KIMONO is obviously spelled the same as the Japanese garment, it is a play on her name. This has caused a lot of backlash as people feel this is cultural appropriation.
The act of taking or using things from a culture that is not your own, especially without showing that you understand or respect this cultureCambridge Dictionary
She tried to trademark KIMONO in 2018, but that application was rejected primarily because there are other registered marks containing kimono in them. She has now filed two new applications: KIMONO BODY and KIMONO stylized word mark. These marks are very likely to be rejected initially for being ‘merely descriptive’ pursuant to Section 2(e)(1) of the Lanham Act.
Although one of her marks was previously denied, it appears that she and her lawyers may rely on secondary meaning in order to overcome a ‘merely descriptive’ rejection. Secondary meaning means that consumers have come to identify a trademark with a certain product over time. Proving a mark has obtained secondary meaning can help to overcome a ‘merely descriptive’ rejection.
So, all the backlash and press around the mark could very well work in her favor because she can use these news articles, blog posts, tweets, etc., to show to the USPTO that her mark KIMONO is in society’s consciousness and all these people are well-aware of the origins and ownership of the mark.
If she cannot obtain the trademarks at this time, or they are placed on the supplemental register, acquired distinctiveness may be a long-term option. Descriptive marks that have been in use for five years can submit evidence showing their mark has acquired distinctiveness and is therefore entitled to registration on the principal register.
There are some interesting issues surround Kim Kardashian’s trademark applications, especially seeing how the USPTO handles a situation like this where a potentially descriptive or generic mark is so in the lime light.
Want to speak to a Trademark Attorney? Contact us or give us a call at 505.715.5700