Kim Kardashian v. Old Navy
By Maria Cheung
Reviewed by Jennifer Williams
I have to admit, I love the Kardashians. I love to watch their television shows (the Kim Fairytale Wedding was amazing) and read about them in magazines. I started watching them when I was a junior in college after I had just returned from a semester abroad. I had heard of Kim before but had never expected to like the show. Well, after an episode I was hooked. They were simply an attractive but genuine family who truly loved one another. In some ways, they remind me of my own family and since that semester, I have been an avid fan watching their every move (I am ashamed to say I even own their book).
Yet when I heard about Kim’s lawsuit against Old Navy over a commercial featuring Melissa Molinaro, I thought it was absurd. I actually remember first viewing the Old Navy commercial when I was sick in bed last winter. Although from first glance and without my glasses, I thought the actress in the commercial (Molinaro) looked like my beloved Kim, after a few seconds and a closer look, I realized this was definitely not Ms. Kardashian. Although the two have similar hair and could have a similar look (Kim did have plastic surgery a few years ago, which made her unique and ethnic nose a little less pronounced), Molinaro simply looks like herself. I actually thought she looked familiar but for another reason, which I discovered later. Molinaro has been on television before, namely in the show Pussycat Dolls Present: The Search for the Next Doll, which I did watch. Thus, Molinaro has her own identity and image in the entertainment business.
Furthermore, everyone knows that Kim cannot dance. She can simply wiggle around semi-seductively. In the commercial, Molinaro performs intricate dance moves, some of which only a professional dancer could do. She even hops up on a grocery store check-out counter and dances in unison with other dancers on the counter. A google and youtube search shows some of Molinaro’s other works and she is a legitimate dancer. She sings and has her own music videos.
Kim alleges that Old Navy intentionally featured a look-alike of her in their commercials by hiring Molinaro. She has filed a lawsuit for unspecified damages.
“I’ve worked hard to support the products I’m personally involved with and that I believe in,” Kardashian said in a statement obtained by The Hollywood Reporter.
“Kim Kardashian is immediately recognizable, and is known for her look and style. Her identity and persona are valuable. When her intellectual property rights are violated, she intends to enforce them,” added her attorney Gary Hecker.
Kim hopes to follow in the footsteps of other celebrities who have filed successful lawsuits against brands who want to capitalize on their image and likeness without the celebrities’ permission. Other celebrities such as Jacqueline Kennedy Onassis, Bette Midler and Vanna White have won their lawsuits for claims on rights of publicity and misappropriation of image and likeness. However, in those lawsuits, the commercials showed a person or in Vanna White’s case, a robot, who not only resembled the celebrities but were also surrounded by the celebrities’ environments. Vanna White’s robot was in a game show, Bette Midler’s voice, which was well-known for singing, sounded like her own and Onassis’ look-alike not only looked like her but was also doing activities that consumers would believe Jackie O. would be doing. Unlike these cases, consumers know that Kim cannot dance. The commercial featured Molinaro singing, walking and dancing through a grocery store. Molinaro then continues to sing, walk and dance through her day at the dentist’s office, in the street and in a park with a bunch of other back-up dancers. The concept of the commercial revolved around Old Navy’s super cute campaign and jeans, which Molinaro sings can get her through her day and even out a traffic citation. Kim has never done this. There was not anything in the commercial to make the consumer believe that this would be Kim or that this is Kim’s environment. There is not a huge house in the background (to signify a Kardashian house), nor were there fancy restaurants or a Dash store.
Also in the other cases, the celebrities sued because they did not want consumers to believe they endorsed the product in the commercials. The general public knows that Kim did not endorse any Old Navy products. Although the Kardashians have a Sears’s line now, the line pieces are actually not that affordable ranging from $75 to $100 whereas Old Navy is very affordable.
Although there are no bright line rules of law in this area, I truly think Kim’s claims, whether they are for false advertising, violation of publicity rights, and/or trademark violations, are without merit. Consumers simply were not confused by the Old Navy commercials, although a court will probably look at Old Navy’s intent as well. According to reports, Old Navy did not issue a casting call for a Kim look-alike, the company simply wanted an actress, singer and dancer, which Molinaro is. I think it would have been unconstitutional for Old Navy simply not to hire the talented Molinaro because she may have a slight resemblance to Kim at times. Hopefully, the court will feel the same way.