Kim Kardashian West recently announced the launch of Kimono Solutionwear. As expected, the name of the "inclusive" shapewear line was met with intense backlash and even sprung a new hashtag dubbed #KimOhNo. Many Japanese people were deeply offended by the implication of exploiting their traditional culture in the name of consumerism and slammed Kardashian West for both cultural appropriation and insensitivity.
“Finally I can share with you guys this project that I have been developing for the last year. I’ve been passionate about this for 15 years. Kimono is my take on shapewear and solutions for women that actually work,” she stated in a post on Instagram. “I would always cut up my shapewear to make my own styles, and there have also been so many times I couldn’t find a shapeware color that blended with my skin tone so we needed a solution for all of this.”
A few days after the drama seemed to die down, it was revealed that the entrepreneur had filed trademarks for the words "Kimono,” “Kimono Body,” “Kimono Intimates” and “Kimono World" in the United States. Yoshifumi Nakazaki, deputy director general of the Japan Kimono League, told the Washington Post that it is "unthinkable for a Japanese person to register kimono for a trademark." Since then, the amount of outrage has reached new heights as an entire nation feels disrespected.
Kardashian West addressed the controversy in a new statement to the New York Times where she said that the brand's name is “a nod to the beauty and detail that goes into a garment" and elaborated on how people will not be restricted from using the word if her trademarks are approved. While the world patiently awaits for these applications to be reviewed, Highsnobiety spoke to a trademark attorney (who wishes to remain anonymous) to find out the likelihood of this endeavor succeeding and put any concerns to rest as Karashian West moves forward with Kimono.
For starters, can you explain the process that goes into filing a trademark? What does trademark protection actually entail?
The primary components of what a trademark is, is you are looking to get a specific mark, a trademark or a service mark, for a particular set of goods and services. The way that your fees work out is you pay a certain fee per class and there is a whole big, international class system on how we identify goods and services. For example, if I was making computer games that would be in our Class 9, whereas if you're selling airplanes that would be in Class 12 and so on and so forth. So, that's the application process in the sense that you apply and then it gets reviewed by a trademark examining attorney.
The trademark examining attorney reviews it to see if there's anything wrong with the applications, like mistakes with how they've identified themselves. That usually happens for corporations. Another thing, which is probably relevant to the kimono, is if the mark is just describing something about the goods or services, or if they're the common commercial name of those goods and services. So if you're trying to use that coming in for kimonos, you are not going to be able to get that trademark because that's the generic name that everyone needs to be able to use.
Can you break down this Kimono application? What exactly is Kim Kardashian West trying to gain by trademarking these phrases in terms of the rights?
So basically trademarks are a way of protecting the goodwill in a business or brand. What that means is that if you have a registration for your trademark—and we're talking about sale registration here—you're able to exclude everyone else in the country from using that term in association with particular goods and services. That's a little wrinkle that people don't recognize is that it's not that, 'Oh, well she trademarked kimonos, so every time I say kimono I gotta pay her money.' It's really like, if she has Kimono shapewear or bodywear, she gets that put on clothing items, assuming they are not kimonos, that's saying that no one else can use kimono as part of the mark unless it's in reference to Kimono goods.
How long does it typically take for this process and awaiting a decision?
It depends on a variety of factors, but typically takes between two and three months for it to get in front of an examining attorney. Let's say everything was good to go at that point, then it would be another probably month or two before it gets registered, assuming there are no issues. So, it would probably take a good six months in the best of cases. But worst case if there are a lot of refusals and things going on then it could be years.
How likely is it that these trademarks will actually get approved?
I think it depends on a couple of factors. It depends on if there are any other previous kimono trademarks for something that is similar already that has been registered. So, if there's a kimono trademark for, I won't go the clothing route, but the leather bags and all the other stuff, then they're not going to be able to get that trademark. If there's not, then I think it's probably pretty likely for the stuff that she's applied for in Class 18, which is a lot of the handbags and I think there's dog harnesses and all this other kind of stuff in there.
The clothing is going to be a little bit trickier because like I said, kimono is the name of a clothing good that you can buy. I think it'd be an interesting question of how they're going to treat the rest of those clothing items. Without having looked at any of their stuff, it seems pretty likely for the leather goods, but it's kind of up in the air for the clothing items.
Is there precedent for brands attempting to trademark words or phrases that are too generic or commonly used to be deemed worthy of copyright?
For trademark there absolutely is. Some brands have come in before and tried to trademark "LOL" for clothing or people will try and come in for Columbian coffee beans, and they get refused because they're either generic or, like you said, there are some phrases that are so commonly used that no one would ever see them as a trademark. Like "I heart D.C." or something, "I heart New York," no one's going to think that that's identifying the source of a brand.
From your perspective, is it really necessary for Kim Kardashian West to trademark these terms?
Well if she's trying to start a business under the mark Kimono and all the other kimono stuff, I think that it would be useful for her. Assuming she's going to be selling it on an international scale, you want to protect your rights. I'm not saying anything about the validity of getting kimono for that, but let's say with some less controversial marks, there's real value in protecting the brand here. Also, once you get protections here you can start applying to other countries if you're selling your stuff internationally and get protection overseas as well.
The West family has previously attempted to register the names of their children with the U.S. Trademark and Patent Office. What's the point of doing that?
I think the idea behind that is probably because they're all big into the media and everything else, and they all end up trademarking their names anyway. My take is to avoid having a situation where somebody else comes in and trademarks their kids' names or something and they have to have a big dispute with some other third party about who has the right to that name and everything else. Again, it's the idea that you want to protect your business or the brand they're going to be developing as soon as possible so they can start selling a little bit of stuff but whenever the kids grow up, they own the rights. You have that built-in protection already.
Anything else worth taking note of?
A lot of people will conflate applying for a trademark for actually trademarking something or getting federal registration for it. I saw one article saying that "Kim Kardashian has trademarked this phrase" and it's still pending with the USPTO [United States Patent and Trademark Office], so it's not accurate. That's the only thing I would say.