Kim Kardashian and Cultural Heritage: Why Kim is Renaming Her Shapewear Line

Cultural heritage is described as the “legacy of physical artifacts and intangible attributes of a group or society that are inherited from past generations, maintained in the present and bestowed for the benefit of future generations.”[1] It is undeniable that the kimono is an integral part of Japanese culture and heritage, with its first use dating back to the 8th century. This T-shaped garment is not patented or trademarked by any person or company; rather, its rich cultural history and unique design belong to all people of Japan, past and present.

American businesswoman, socialite, and model Kim Kardashian recently announced (then redacted) that she would be naming her new line of Shapewear, Kimono, a pun on her name that resulted in serious social implications. Many outraged people claimed the name was an example of cultural appropriation, a misuse of cultural heritage that did not belong to her. Aside from the accused insensitivity of the brand name, Kardashian faced serious legal implications from the use of the trademark.

Japanese trade minister Hiroshige Seko urged the US Patent and Trademark Office (the “USPTO”) to examine the case, claiming that the kimono is “globally known as belonging to Japan”[2]. Apart from cultural pressure, there would be substantial legal pressure faced by Kardashian if she chose to attempt to register the trademark. Under the Lanham Act, 15 U.S.C §1052(a) , trademarks are registrable unless they consist of deceptive matter which “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

A potential argument in favor of the mark’s infringement of 15 U.S.C §1052(a) would be that the kimono is a garment unique to the people and culture of Japan and has acquired international fame and status as a result of its long-standing presence in Japanese fashion. This shapewear is in no way connected, either culturally or materially, with the kimonos used for centuries in Japanese fashion; neither is Kim Kardashian a woman of Japanese heritage. The Japanese trade minister’s urging of the USPTO’s examination of the mark, then, could result in refusal based upon those grounds.

Furthermore, under 15 U.S.C § 1125, the dilution of famous marks is forbidden. While the kimono has not been trademarked, as there would be dispute over who owns the rights to the use of the mark, it can be argued that, by the definition of a famous mark given in 15 U.S.C § 1125 (b)(2), constituting a mark that “is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner”, it is clear that the kimono is, by the Lanham Act’s definition, famous.

While pieces of cultural heritage do not have expressly stated protections under US trademark law, the language in the Lanham Act can be used to protect objects or entities that are tied to a particular group of people.

[1] Shyllon, Folarin. “Cultural Heritage and Intellectual Property: Convergence, Divergence, and Interface.” A Companion to Heritage Studios, First Ed. John Wiley & Sons, Inc. 2016. Web.

[2] “Japan Warms Kardashian in Kimono Clothing Range Dispute.” Guernsey Press. 2 July 2019. Web.

Photo by   CHLOE HUISS   from   Pexels

Photo by CHLOE HUISS from Pexels