The Kardashian Cosmetic Brand Legal Battle Ensues-Will Their New Mark Be Granted Federal Trademark Protection?

The Kardashian cosmetic brand legal drama is the 1^st fashion law issue I ever wrote about. I am going to keep updates coming as all of the legal details unfold because I want to follow it from start to finish. I believe that a settlement should occur and so I am hoping to report that aspect one day! I wasn’t sure if the recent updates were worth reporting yet, but after some research I am very eager to blog about 2 areas, the first relating back to a legal series I just recently blogged about.

With my own legal series I am writing, it is all culminating to exposing some very serious legal issues that the fashion industry must face. One major area being the lack of protection afforded to designers and for other aspects of the fashion industry. I will leave that soapbox for another day. Today I am posting about the serious practical issues for trademark law today and demonstrating it thru this case. Lee Tillett, owner of Kroma Cosmetics, is just one of the opponents the Kardashians/Boldface have with their legal battles. Tillett, while successful, is comparatively a smaller business model to that of the Kardashians. However, she took the time and budgeted the funds to register her mark with the USPTO, with of course, the hope being that her mark would be sufficiently protected. However, that is not the case as it’s presented today-a brief recap of the Chroma v Khroma v Kroma battle.

No final determination has yet been issued from the court. Neither has an official settlement been reached. However, in the meantime, Tillett’s smaller company must continue to pay legal fees and bonds to ensure that her mark remains protected. It’s truly a sad day that a company who abided by the law is now having to pay more just to ensure enforcement of protection. Even though I believe a settlement will occur, it might not cover all of the damages or legal fees Tillett has accumulated. But the public can help! Friends of Tillets have created a webpage , twitter and facebook forum for any members of the public to donate to her cause. These are great sites to look more into if this issue has sparked your interest. If you believe in the cause and if you have the capability to assist, I would urge you to do so.

Getting back to the actual case updates, it is official that Boldface’s motion for a stay on the injunction has been denied. Tillett was also able to successfully lower the cost of the bond to secure the injunction to go from $50,000 to $5000. Perhaps the biggest update is that the Kardashians filed for a new trademark application for that of KARDASHIAN BEAUTY. These products are already in full force and are on the market-CVS, Ulta, UK website, Facebook and Twitter. However, my recent visit to check the official status of the mark showed that initially, it was denied. A couple of issues were raised and so now the Kardashian legal team must address those issues in order to receive federal trademark protection. One of the issues is a familiar one to Boldface and that is the likelihood of consumer confusion. It’s a bit odd however that the cited marks that KARDASHIAN BEAUTY is too similar to are marks already registered by the Kardashians. Other issues are the relatedness of the goods and trade channels, but more specifically is that all of the marks feature the term KARDASHIAN. The other issue is that the mark is merely a surname. The USPTO does recognize that it’s a rare surname, but that combining a surname with the generic name of the goods doesn’t overcome this issue. So this is not to say that the mark, since its already in use, will not ever receive federal trademark protection, but it brings up some questions, again, for me about the level of diligence the Kardashian legal team is providing.

Let’s do a recap of the failed legal work for this case:

Attorneys are generally the ones who file the trademark application, so now, 2 have been filed and rejected by the USPTO. I question if due diligence existed with the research and use for either of the marks. I also question counsel being provided to the Kardashians on pursuing other names or taking alternate courses of legal action.
Rather than appealing the initial trademark rejection, attorneys filed a declaratory action for the Kardashians-basically skipping an integral step of the Trademark process.
Also, it’s unclear that any warnings were given to the Kardashians to not launch or use this mark, despite the USPTO rejection or receiving cease and desist letters from KROMA and CHROMA
Being that no settlements have been reached yet, I’m questioning the advice being given for this area, at any point during litigation. Legal teams have instead vehemently argued against an injunction and lowering of the bond amount and for the stay of the injunction, all of which were denied.

It appears to me that there was some knowledge, yet no great advice given to deter the use of a mark that would certainly face legal troubles. If this was the plan for the Kardashians to have a successful cosmetic line, I’m not seeing how these courses of actions will help in that regard. My hope for the future is that this all does come to a quick end and that more diligent legal efforts are offered to the Kardashians.