Why the backlash over Kim Kardashian trademarking 'Kimono' strengthens her legal case

Critics of Kim Kardashian’s decision to name her new shapewear brand “Kimono” were quick to voice their outrage on social media, claiming the star was culturally appropriating the name for a traditional Japanese garment.

Ironically, that same outrage that briefly had #KimOhNo trending may have just helped her legal case to get her Kimono brand trademarked.

First, despite some news reports claiming that Kim Kardashian already trademarked the word “Kimono.” She hasn’t, but she has tried.

Through her attorneys, Kardashian attempted to trademark “Kimono Intimates” in 2018, according to filings with the U.S. Patent and Trademark Office. The application, however, was initially rejected due to other companies already operating with similar brand names. Minneapolis-based fragrance company Thymes, for example, successfully trademarked its Kimono Rose line of soap products and candles back in 2011.

Since then, Kardashian filed two new trademark applications last week, including one standard trademark for “Kimono Body” and another for the stylized design of the text “Kimono” she says her husband Kanye designed for the shapewear line she announced on social media Tuesday.

That’s where the uproar comes in.

As trademark attorney David Leichtman explains to Yahoo Finance, Kardashian’s renewed attempts to trademark “Kimono” will in-part hinge on proving consumers associate the term directly with her.

Kim needs to prove ‘secondary meaning’

“She’s going to have to show what we call in trademark law ‘secondary meaning,’” Leichtman said on Yahoo Finance’s YFi PM. “What ‘secondary meaning’ means is that ... the relevant consumers for those goods associate the mark with the quality that emanates from her brand.”

Apparently, a simple way of showing exactly that is to get the news, even with the backlash, trending on Twitter.

“By creating a social media uproar she has actually strengthened the case that people will recognize the word ‘Kimono’ with her own line of clothing and her brand,” Leichtman said.

Of course, not everyone is equally suited to create as much impact as Kardashian is in a single tweet, considering her 61 million followers.

“The reason why Kim Kardshian is uniquely positioned to acquire secondary meaning is because consumers now know to connect the brand to her,” explained Joel MacMull, an intellectual property attorney at law firm Mandelbaum Salsburg. “It’s bonafide acquired distinctiveness, people will say, ‘I know ‘Kimono’ and I know it relates to Kim Kardashian.’”

If that actually happens, and Kardashian’s star power comes to displace the meaning of the word kimono, it would be easy to see why so many were quick to call it culturally appropriating. Unfortunately, for those same critics, Kardashian’s attorneys can now also point to that documented outrage on social media as further proof that the word has become distinct to Kardashian herself.

“Essentially by complaining they merely enhance her profile and the public perception between her and the mark,” MacMull said. “I’m sure she’ll have all kinds of people gravitating to it and on day one, she’ll be able to say I sold hundreds of thousands of nipple-cover pasties.”

The trademark classes that Kardashian applied for includes everything from shapewear, to nipple-cover pasties, to leather goods, to luggage and other retail segments. If approved, her stylized trademark of the Kanye design would only cover the classes she applied for and, as Leichtman explains, will be more limited in scope than if she were able to win her first attempt at a trademark on the word “Kimono” itself.

“What she may be able to do is to get registration just for that logo — not the word itself,” he said. “And therefore, anybody who would copy something that looks like that logo she would be able to stop, but she won’t be able to stop somebody doing ‘Kimono David’ or ‘Kimono Steven’ or something like that.”

Nonetheless, Kardashian’s trademark case is in a much stronger position now than it was before. One has to wonder if it has anything to do with the fact she recently began a four-year law apprenticeship in order to become an attorney herself.

The attorney listed on the trademark application, Steven Solomon from law firm Pearne & Gordon, did not return Yahoo Finance’s request for comment.

“I don’t know whether she was the one who first planted the story about her own trademark filing,” Leichtman said, “but if it was her … it was a very smart move in terms of trying to develop evidence that people do associate the name kimono with her brand.”

With the trademark application only being filed last week, it could be months before the application is reviewed.

Zack Guzman is the host of YFi PM as well as a senior writer and on-air reporter covering entrepreneurship, startups, and breaking news at Yahoo Finance. Follow him on Twitter @zGuz.

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