Celebrities are often at the centre of legal wrangling over intellectual property, and Kylie Jenner is no exception. In fact, Kylie Jenner (whose name we use in full for obvious Minogue-based reasons and who shares her surname with Caitlyn and Kendall) has been involved in IP litigation before.
In 2017, owners of the rights to imagery of legendary rock band The Doors threatened to sue Kylie Jenner (alongside sister Kendall) for appropriation of the band's likeness to sell t-shirts. In the same year, Sara Pope accused her of copyright infringement over a photograph of neon-painted lips that appeared in her reality TV show.
Now, Kylie Jenner finds herself at the centre of a more serious storm: an actual lawsuit has been filed against her by Sheree Cosmetics, owner of the range 'Born to Sparkle' (for which it owns the trademark of the same name) for infringement in her own 'Born to Sparkle' makeup product.
The lawsuit claims that Kylie Jenner personally created the infringing glittery makeup product, and that her various companies market and profit from it. The lawsuit further claims that Sheree's line has a high degree of distinctiveness and so it should be awarded 'triple damages'. This is a US concept similar to, but more punitive than, that of flagrancy damages in the UK: where the sum awarded is uplifted if the infringement is intentional or with disregard for others' rights.
Various potential defences have been mooted in the fashion press. One such is whether Kylie Jenner's use on one product is actually use "as a trademark" given that her brand is one of the most well-known and successful in the makeup industry, and was recently valued at over $900m. The question that we are sure Kylie Jenner's lawyers will pose is simple: does the consumer see the words "Born to Sparkle" and identify it as a badge of origin, or does the consumer see Kylie Jenner's branding as the badge of origin?
We will keep an eye on this case as it progresses, though it may well end with a quiet settlement away from the prying public's eyes.
If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or firstname.lastname@example.org.
Posted by: in: EU/International, Trade Marks