Kardashian Sister’s Lash Out

By: Alison Parker

The latest Kardashian drama actually doesn’t involve Kris Humphries or Khloe assaulting a transgender woman, but it involves something the sisters are adored for–their eyelashes.

The sisters are threatening legal action against Sarah Ehrlich, the maker of an eyelash elongation product, because she has filed a petition to trademark the name “KardashianLash.” Apparently Ms. Ehrlich spoke to TMZ and told them that she wanted to use KardashianLash to help raise money to send Honduran orphans to cosmetology school and that she didn’t think the Kardashian sisters would mind. And not only do the Kardashian’s mind, they claim that she is infringing on their trademark and they will do whatever it takes to get her to stop.

If Ms. Ehrlich refuses to stop and the matter ends up going to court, it seems like she doesn’t stand a chance. There are defenses available to trademark infringement, and in this situation, Ms. Elrich would probably try to claim the Fair Use defense. Fair Use may be asserted in two instances. The first instance is if the alleged infringer used the trademark to accurately describe its own products. Ms. Elrich may try to argue that she used the Kardashian’s trademark to describe her products–that her eyelash elongation product would give you lashes just like the Kardashian sisters’ lashes; she is describing her product by referencing the famous sisters. However, while you can use another’s trademark to describe a product, you cannot use their mark as a trademark, which is exactly what Ms. Elrich is doing here.

The other situation where Fair Use may apply is if the alleged infringer used the mark to identify the owner of the mark–this is typically used when comparing one product to another.  This does not apply because Ms. Ehrlich is not using the Kardashian’s name in comparison to her product. Actually she is doing the exact opposite–she is using her reference to the Kardashians to sell her product.

In addition to considering the available defenses when evaluating an action for trademark infringement, the court will consider the potential for consumer confusion with respect to the trademark and the product. It is arguable that the average consumer would believe that the Kardashian’s endorsed KardashianLash or are in some way associated with it, and may be lured into buying it because of that false belief.

The court would also likely weigh the policy considerations of allowing someone to use the Kardashian’s mark without their consent. The Kardashian sisters are marketing geniuses; they have selectively branded themselves in a variety of beauty and fashion related enterprises- so for someone else to use their mark on a product that they did not endorse would be unfair to the sisters. Also, a ruling in Ms. Elrich’s favor would effectively open the floodgates for entrepreneurs to capitalize on other celebrities’ images to brand their products which would effectively deprive the celebrities of the vital right to profit off their own image and likeness. It seems like Ms. Ehrlich should recognize that she is in the wrong and end the matter before a judge could get involved.

picture from http://www.pcreations.wordpress.com

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