Australia: Kardashian shapewear trade mark draws criticism for cultural insensitivity

Last Updated: 9 August 2019
Article by Catherine Sedgley

Assisted by Natasha Mustac

Being no stranger to controversy, Kim Kardashian is currently facing public scrutiny regarding the release of her new body shapewear line, 'Kimono'. Kim's choice of brand name has prompted widespread accusations of cultural insensitivity due to its blatant disrespect of the Japanese culture. Understandably, the Kardashian fashion line of 'solution wear' for women is vastly different to the culturally significant Japanese traditional robe.

Unsurprisingly, Kim has faced significant backlash and widespread allegations of cultural insensitivity and appropriation for the use of her trade mark. A social media frenzy has consequently sparked with the #KimOhNo campaign trending on multiple social media platforms. Japanese women have also actively protested against the Kardashian business venture by sharing photographs of themselves in the traditional Japanese gown. The Mayor of Kyoto, Daisaku Kadokawa, has also requested that Kim reconsider her decision to use the name "Kimono" as her trade mark and to recognise the importance of the word within Japan's cultural history. Kadokawa further explained that Japan was in the process of registering 'Kimono' on UNESCO'S Intangible Cultural Heritage List and consequently the word should not be monopolised or the subject of a trade mark application. Kim has since bowed to public pressure by announcing that she will consider changing the name of her shapewear brand.

Interestingly, the registration of the word 'Kimono' for the Kardashian shapewear line will not prevent individuals (or countries) from using the term. It is worth considering the millions of registrations for commonly understood words on Trade Mark Registers around the world that do not impede on the use of the word in a cultural way or as a descriptive term. The most commonly known example is the well-known brand 'Apple'. Apple Inc.'s trade mark registrations for the common fruit only prevents other entities from using the word 'apple' in relation to the goods and services covered by its registrations, namely computers and computer software, ultimately stopping other entities from abusing or "riding on the coat tails" on the success and reputation of the Apple brand. In the current circumstances, Kim's use of the trade mark "Kimono" allows her to use the word in relation to her shapewear line but does not preclude or restrict anyone from making kimonos or using the word kimono in reference to the traditional Japanese garment.

Since the release of the shapewear line in June, it has been revealed that Kim has filed trade mark applications not only for the word 'Kimono' but for the trade marks 'Kimono Body', 'Kimono Intimates' and 'Kimono World' in the United States. The key issue at play when considering the registration of these terms is that of cultural appropriation and the intellectual property (IP) rights of Indigenous culture and knowledge. In early 2018 IP Australia published the 'Indigenous Knowledge: Issues for protection and management'; a paper which closely explored the relationship between tradition-based knowledge of Aboriginal and Torres Strait Islander peoples and issues of IP. The Report encouraged businesses to 'do the right thing' and respect the integrity of Indigenous knowledge to avoid potential misappropriation, particularly when considering trade marks. Recently, Sydney's Federal Court ordered Birubi Art Pty Ltd to pay a multimillion-dollar penalty after it was found in October 2018 to have produced fake aboriginal artwork.

Key Takeaways for Businesses

Kim's 'Kimono' trade mark debacle raises several important lessons for businesses. Firstly, businesses should be urged to take the necessary steps to research the availability and registrability of a trade mark. This should be done well before a trade mark is registered or promoted within the public domain. Within an Australian context, businesses should be aware of section 42 of the Trade Marks Act which makes it possible for the Registrar of Trade Marks to reject a trade mark application if the mark is considered to be 'scandalous'. An application may also be opposed by a third party on the same grounds. Additionally, it is of upmost importance for businesses to consider the broader cultural issues when researching the legal aspects of a new brand and seeking protection for that brand. A company's choice of words can negatively impact a brand's reputation and create bad publicity costs, possibly to the brands demise as seen by the public backlash 'Kimono' has faced in the short space of a week.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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