Carol Goyal
Jul 04, 2019

Weekend Blog: Kim Kardashian and the #KimOhNo

Why the Kimono is stirring up such a blistering marketing controversy

Weekend Blog: Kim Kardashian and the #KimOhNo

Last week Kim Kardashian embroiled herself in yet another cultural appropriation controversy (what’s new you may ask?!). Kardashian recently got into the lingerie business with Kimono, a new line of shape wear. The new range under the Japanese sounding brand was unveiled last week in New York by the colourful diva. Her website explains that Kimono is “a new, solution focused approach to shape enhancing underwear” and “is fueled by her (Kim’s) passion to create truly considered and highly technical solutions for every body”.

The name of the brand is obviously a clever (some would say deliberately inventive) play on words with Kardashian’s first name, but a huge uproar has erupted online with regards to the fact that the brand is named after the traditional Japanese robe-like garment, the venerable ‘kimono’. On social media, Kardashian has come under incessant fire for what many have labelled “cultural appropriation” (or passing off, more like) and have expressed their dissatisfaction and disapproval with the fact that the nude shapewear Kardashian shared in photographs handed out to media looks nothing like an actual ‘kimono’ in the first place!

When launching the brand, Kardashian filed for a trademark with the United States Patent and Trademark Office under her business venture, Kimono Intimates, Inc. But if one were to look closely at the specifics of the trademark application, it would appear that Kardashian is not actually attempting to own the word “kimono”. Instead, she has applied for a trademark for ‘kimono’ as it is stylized in a particular bubble font (which was actually drawn by spouse Kanye West). It is unlikely that a trademark for just the word “kimono” would have been approved in any case for Kardashian to fully exploit Japanese culture by “owning” the word kimono.

By the way, Kim has also applied for trademarks for “Kimono Body” and “Kimono World”. Well other companies in the past have tried to do similar stuff, but without success. Kardashian also applied for a wordmark on the word kimono, which is different from a trademark, and some of the wordmarks she applied for have been suspended. From an intellectual property right point-of-view, if the argument that Kardashian has appropriated Japanese culture hinges upon the fact that the cultural significance of the word “kimono” is at risk of being co-opted, then that is a fair point in law.
But if one were to examine issues dispassionately, the question that begets an answer really is if naming a shapewear line after a traditional Japanese garment that it bears no resemblance to a misappropriation of any sort?  That is where the details of Kardashian’s trademark application are crucial to understanding just how much of her new shapewear venture is actually appropriating another culture. What most us don’t understand is that what has been cleverly done is that a word as a visual symbol of the brand has been applied for a trademark; there is really no attempt to copyright or trademark the word “kimono” itself, but just as styled in a particular font. The particular trademark if approved for her business would protect the word only when it is used in the same stylized font for that product line against direct competitors.
Appropriating ‘cultural’ symbols has been attempted in the past too. In the 90s, India had to fight a dogged battle against some American companies to protect the name ‘Basmati’ rice despite significant claims to GI-tagging. Those American companies in fact managed a trademark on ‘Kasmati’ rice and it took the Indian government a lot of legal expense and cross-country effort to protect its turf. In the case of the ‘kimono’ there have been wide-ranging protests across Japan but their government has still not stepped in to battle mode. 
The words ‘khadi’ and ‘yoga’ have seen pitched battles too. German company Khadi Naturprodukte almost managed an EU trademark not too far back on ‘khadi’ and it took a lot of legal wrangling to negate the foreign entity. It would surprise many to know that the US Patent and Trademark office has reportedly issued 150 yoga-related copyrights, 134 trademarks on yoga accessories and 2,315 yoga trademarks. 
So, if it can all be done to yoga, why can’t Kim just have the ‘kimono’?! Well, the issue with intellectual property (IP) discussions invariably is that there is much ambiguity on many issues: 1. Does anyone actually ‘own’ the trademark? Generic words or names like Basmati or Khadi or Yoga or even Kimono were never really registered for ownership by a state or government or entity till ‘encroachments’ started on that IP. By then most such issues become disputes with varying points of view on who, if any, is/was the rightful owner and beneficiary. 2. Names like Champagne or Colombian Coffee had to go through an arduous and long procedure to ‘own’ even what was rightfully theirs. So Kimono cannot be treated as part of Japanese culture and heritage even if it is so logically, if it has not been put through the rigour of proper IP protection. So, Ms Kardashian laying claim to the name in the US is not really unethical, just opportunistic.
There are already reports that Kim Kardashian may be beating a retreat on the Kimono brandname because of all the negativity it has caused. But the business moghul has already gained what she wanted out of all the hoo-haa on the subject. Some would surely say, ‘how clever!’. I would just say #KimOhNo!
(Carol Goyal is a Mumbai based freelance writer who writes on intellectual property, including IP in art.)
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