Early In 2019, reality star and digital influencer Kim Kardashian West and her loan out Company Kimsaprincess filed suit against UK fast fashion brand Missguided alleging that Missguided had unlawfully violated her trademarks KIM KARDASHIAN and KIM KARDASHIAN WEST; accusing Missguided of illegally exploiting her “publicity rights” without consent or compensation to her; and accusing Missguided of appropriating her name and likeness for their commercial gain.
The defendant Missguided is a fast fashion brand of similar ilk to Pretty Little Thing, Nasty Gal, Fashion Nova and Boohoo all of which are brands that are in the business of making duplicates of designer clothes for the masses whose pockets are not as deep as celebrities like Ms Kardashian but who nevertheless want to look stylish like their favourite stars.
Missguided is accused of using Ms Kardashian’s image on its website and social media pages including Instagram, without her permission. The company conducts business using three different urls (.fr, .com, and .co.uk) though only the .com url which was “pointed towards US consumers” is in contention in the lawsuit. Once the lawsuit was filed by Kardashian’s lawyers Kinsella, Weitzman, Iser, Hump, Aldisert LLP, Missguided, which was repped by London solicitors Brandsmiths, pulled a disappearing act.
Kim’s lawyers filed a lengthy legal motion for default judgment totaling over 29 pages against Missguided to explain to the court why their client was entitled to $5 million dollars in damages as a result of the infringement by the fast fashion brand. To begin with, the lawyers for Ms Kardashian mapped out the basis on which a right to publicity lawsuit is proven in California. In their motion for default they opined:
“In California, to state a claim for appropriation of name or likeness under the common law right of publicity, a plaintiff must allege and prove: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Wendt v. Host Intern., Inc., 125 F.3d 806, 811 (9th Cir. 1997).”
Then they went about showing the court why each and every element was met in their case.
There did not seem to be any dispute that Missguided used the name and likeness of Ms Kardashian based on the documentation provided by her attorneys including screen shots from the defendant’s website actually showing the use of models who looked and dressed exactly like Miss Kardashian. There also is no dispute that this infringing act gave the defendants a commercial advantage in that they were able to sell items of clothing from the website bearing Miss Kardashian’s name and likeness (including one sale to Kardashian’s attorney.) There also is no dispute that Ms. Kardashian did not consent to the use of her image and that she was injured insofar as loss of compensation and potentially reputational harm given that she is a vocal critic of fast fashion brands which she has said ripped off her husband’s designs as well as the designs of “real designers” whom she works with.
The only dispute seemed to be the amount of the harm. The court awarded Miss Kardashian somewhere in the region of $2.7 million dollars in default. This is roughly half of what she had asked from the court. Her lawyers had argued that since Ms Kardashian routinely earned up to $500,000 for a single Instagram post, that the defendant’s infringement would total $5 million at a minimum. In their motion for default they argued: “A single social media post by Kardashian endorsing third-party products will garner a fee ranging from $300,000-$500,000.” They further argued that “damages on a right of publicity claim may be measured by the “fair market value of the right to use plaintiff’s name or likeness in the manner in which it was used by defendant.” Motion for default
The court seemed not to agree with their calculations and awarded Ms Kardashian $2.7 million approximately.
That happened in July 2019. To date, there is no indication that Missguided has paid Ms Kardashian one red cent. It is entirely possible they did so quietly, however, it is also possible that she still has not been paid because according to the bbc.com Missguided responded to the California judgment in a statement saying: “We note the view of the California Court. The legal process has not yet reached a conclusion.”
This is rather intriguing, and a lot of legal bloggers seem confused about this tactical avoidance. Why didn’t they appear in the case? Why did they let it go into default? What do they mean that the case has not yet reached a conclusion? It would seem the case has reached a conclusion because the California court issued a judgment in the case and Missguided has not indicated it will appeal. Even assuming Missguided decided it wanted to appeal, they would have to show some excuse of why they allowed the case to go into default and here, it looks like they were inexcusably neglectful because counsel for Ms Kardashian indicated in his motion that he had contacted the attorneys for Missguided, had spoken with them and indeed they had declined to accept service and also expressed they would not appear. Thus, it is highly unlikely that they would win an appeal.
That being the case, what did Missguided mean that the case had not yet reached a conclusion? Ms Kardashian sought judgment against Missguided USA and Missguided Limited. Both of these entities had a presence in the US and in California it appears. Including, presumably, bank accounts which can be be seized in order to pay Ms Kardashian. Unless they emptied the accounts while the lawsuit was pending? Would it be legal for them to do so? It is possible that Ms Kardashian’s attorneys failed to ask for the accounts to be frozen pending the outcome of the litigation. If that is the case, it seems that Missguided would have been well within its right to clear out its bank accounts. After all, nobody has to a duty to make themselves and their assets available for potential creditors. The trouble is once the creditor obtains the judgment. Not before. So it is possible that Missguided simply moved its assets – if it had them – out of the American forum and transferred them someplace out of the reach of its potential US creditors such as Ms Kardashian.
If that is the case, then for purposes of Kardashian’s lawsuit, Missguided is judgment-proof. There is no way for her to collect the money from them in the US. Notably, California is one of 3 US states that has not adopted the UEFJA – the Uniform Enforcement of Foreign Judgments Act. And the UK and US do not have reciprocity in terms of enforcing foreign judgments as a general rule. Neither country obliges itself to give full faith and credit to judgments rendered in the other country.
Ms Kardashian’s only recourse would seem to be to file a suit in the UK against Missguided. A whole new lawsuit using the California judgment as the cause of action in the UK case. But this is not going to be straightforward because first of all, the UK courts do not recognize a “right of publicity” the way California law does. It is not against UK law to use Kim’s publicity rights without her permission. Though there is a similar law called “passing off” and pop star Rihanna won a similar lawsuit in UK against high street brand Top Shop a few years ago. So it is possible Kardashian could win if she brings a case against Missguided in UK jurisdiction. But it will not be straightforward.