July 9, 2019
3 min read
A US District Judge in California ordered the US branch of fast fashion retailer Missguided to pay Kim Kardashian $2.7 million as the company failed to appear in court.
In March, Kim Kardashian started legal proceedings after Missguided advertised a “knock-off” Yeezy dress on its social media. Missguided included a recreation of a custom Yeezy dress in one of its Instagram posts just hours after Kardashian posted the original on her account. Kardashian’s caption to the post read “fast fashion brands, can you please wait until I wear this in real life before you knock it off”. Yet, Kardashian did not centre her case on the copyright of the dress design, butinstead focused on the trademark infringement.
Missguided’s instagram post espoused rumours at the time that there was a secret deal between Missguided and Kardashian (but this has been publicly debunked by Kardashian). She sought $10 million in damages on the grounds that Missguided exploited her name and image to its own ends without her permission, whilst simultaneously causing her commercial damage as a consequence.
Missguided never responded to the summons to court and thus District Judge Virginia A. Philips prohibited Missguided USA from using Kardashian’s trademarks in the “sale, marketing or distribution of its products”. The US branch of Missguided was subsequently fined $2.7 million by default judgement. The District Judge did not however, enter a default judgement against Missguided UK as it is beyond her judicial jurisdiction. The Manchester-based fashion brand has the right to appeal both the damages and the default judgement, and commented “we note the view of the California Court. The legal process has not yet reached its conclusion.”
This case is a good demonstration of the laxity of US copyright laws in the fashion industry. It is clear that on a personal level, Kardashian feels robbed as she made clear in Tweets made in February of this year: “It’s devastating to see these fashion companies rip off designs that have taken the blood, sweat and tears of true designers”, adding “I’ve watched these companies profit off my husband’s [Kanye West] work for years”.
Despite this, Kardashian’s argument was largely based on her trademark rights (that were abused to cause speculation about whether she was partnered with Missguided) rather than a breach of copyright of the Yeezy dress. This is due to US copyright law not protecting items that have useful properties, such as clothing and accessories. Instead the more explicitly creative elements of a design (such as graphics, images or sculptural elements) are protected. This was challenged by the Supreme Court’s ruling in Star Athletica v Varsity Brands (2017), where Varsity Brands successfully filed a lawsuit against Star Athletica for copying its design of cheerleader uniform. Here, the justices ruled that the distinctive stripes and zigzags were not an innate characteristic of the uniform.
On the other hand, California has publicity laws that specifically protect individual in cases of unfair competition. Hence it was advantageous for Kardashian to focus on trademark infringement and unfair competition in court, and leave her anger about copyright in fashion for social media.
Whether Missguided’s absence from court was a strategic move is up for debate. What does seem likely from Missguided’s ominous statement – “the legal process has not yet reached its conclusion” – is that this may not be the last we hear of this legal battle.
Report written by Will H
Share this now!