Keeping Up With Kardashian Litigation: Kim Sues Over Ad Look-alike

Image by Getty Images via @daylifeIn Kim Kardashian v. The Gap, Inc., Old Navy, LLC et al (Case No. 2:2011cv05960) filed this week in the U.S. District Court for the Central District of California, reality tv star and model Kim Kardashian alleges the defendants violated her right of publicity with its Super C-U-T-E ad blitz launched last February featuring Canadian singer/actress Melissa Molinaro, who resembles Kardashian.

Kardashian is seeking compensatory and punitive damages in the $15 million to $20 million range, according to accounts by TMZ.com, The Idaho Statesman and elsewhere, over the multimedia Super C-U-T-E campaign that allegedly has been viewed more than two million times on Old Navy's YouTube channel. The 31-year-old Kardashian, described in her complaint as an "internationally known celebrity, model, television personality, actress, entrepreneur and pop culture icon," claims the defendants' use of purported look-alike Molinaro may confuse consumers regarding Kardashian's actual endorsements, which include a shoe line and clothing store. She claims the ads infringe on her identity and persona.

The complaint alleges the plaintiff "has invested substantial time, energy, finances and entrepreneurial effort in developing her considerable professional and commercial achievements and success, as well as in developing her popularity, fame, and prominence in the public eye." A lofty description for the E! series Keeping Up With the Kardashians co-star whose initial claim to fame included friendship with Paris Hilton and her own sex tape.

Molinaro, 29, is not a defendant in the suit. Ironically, TMZ.com reports that Molinaro has been romantically linked to New Orleans Saints star Reggie Bush, the plaintiff's former flame, so look-alike may only be the half of it.

UPDATE: Paris Hilton Gets More Than a Card from Hallmark in Privacy Lawsuit

Image via WikipediaHotel heiress, reality tv star, and sometime drug bustee Paris Hilton has settled her misappropriation of publicity (invasion of privacy) lawsuit with Hallmark Cards, pending court approval.

As first reported by The Hollywood Reporter (www.thresq.com), the parties reached a settlement, the terms of which were not disclosed pursuant to a confidentiality agreement, regarding the dispute, which involved a greeting card that featured a photo of Hilton's head [not the South Carolina resort] on a cartoon body. (See "TUOL" post 9/2/2009).  Hilton sued the Kansas City, Mo.-based greeting card giant in U.S. District Court for the Central District of California in 2007 (Case No. 2:07-cv-05818) alleging the privacy claim, along with trademark infringement and false designation under the Lanham Act.  Hallmark counter-sued, bringing an anti-SLAPP motion alleging First Amendment violations.

The U.S. Circuit Court of Appeals for the Ninth Circuit tossed both the anti-SLAPP claim and Hilton's trademark infringement claim, but allowed the privacy count to proceed [Docket No.  08-55443]. Trial was slated for December before the parties reached their accord.





The greeting card that inspired the lawsuit had Hilton as a waitress warning a male customer: "Don't touch that, it's hot." The customer replies: "What's hot?" Hilton's rejoinder: "That's hot!" Inside, the greeting card reads: "Have a smokin' hot birthday."  Hilton registered the expression "That's Hot!" with the U.S. Patent & Trademark Office.  Hallmark's transformative use argument was rejected by the three-judge Ninth Circuit panel, who sent the case back to the trial court to hear the privacy claim.


"TUOL" considers Paris Hilton's likely favorable resolution of her Hallmark lawsuit a publicity interlude to tide us over until the next coke bust or sex tape release. Not great jurisprudence, but more fun than some of the cases the Supreme Court will begin hearing next month.

Paris' "Hot" Lawsuit: A Legal Hallmark?

Image via Wikipedia

Whether celebrity heiress Paris Hilton's lawsuit succeeds is in the cards--Hallmark Cards, that is.

Hilton sued the Kansas City, Missouri-based greeting cards maker in U.S. District Court for the Central District of California in 2007(Case No. 2:07-cv-05818) alleging misappropriation of publicity (i.e., invasion of privacy),false designation under the Lanham Act, and infringement of a federally registered trademark. Hallmark, in turn, filed an anti-SLAPP motion against Hilton, arguing her suit was frivolous and violated the company's First Amendment free speech right.


The row involves a greeting card that superimposes Hilton's head onto a cartoon body of a waitress serving food to a male customer, warning: "Don't touch that, it's hot." The customer responds: "What's hot?," eliciting HIlton's hilarious rejoinder: "That's hot!." Inside, the card reads: "Have a smokin' hot birthday."

Hilton registered the phrase "That's hot!" with the U.S. Patent & Trademark Office. She frequently uttered the expression on her fish-out-of-water reality series "The Simple Life," that featured Hilton and her former "BFF" Nicole Ritchie as privileged "princesses" engaged in rustic or working-class settings, such as feeding livestock.

Hilton claimed the Hallmark card employing her catchphrase was lifted from the exciting episode of her series entitled "Paris' First Day as a Waitress" in which she toiled for the Sonic Burger fast-food eatery. The district court tossed Hilton's trademark infringement claim, but rejected Hallmark's anti-SLAPP motion.

This week, a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit weighed in (Hilton v. Hallmark Cards. Docket No. 08-55443). The appellate court upheld the dismissal of the anti-SLAPP motion and was unpersuaded by Hallmark's transformative use defense, remanding the case to the district court where Hilton may proceed on her privacy/publicity claim.  Hallmark is considering appealing the ruling to the full bench of the Ninth Circuit or the Supreme Court.

The appellate court decision, in rejecting the anti-SLAPP motion, said that although Hilton's claim does not merit judgment in her favor as a matter of law, "she has at least some probability of prevailing on the merits before a trier of fact."

In the wake of this litigation, don't expect any greeting card company to take a flyer on a line of "Thinking of You" cards featuring images from the heiress' iconic Internet sex tape.