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Is Kim Kardashian West's New Fast Fashion Lawsuit a Distraction From Copycat Allegations?

Her lawsuit against Missguided has raised some questions.
Kim Kardashian West at the 2019 amfAR Gala in New York. Photo: Michael Loccisano/Wire Image

Kim Kardashian West at the 2019 amfAR Gala in New York. Photo: Michael Loccisano/Wire Image

Kim Kardashian West has had it. Officially. On Wednesday, KKW filed legal action against a fast retailer, accusing the brand of unlawfully using her likeness to shill their products. But Kardashian's lawsuit landed just days after accusations grew on social media that she may have secretly collaborated with a different fast fashion retailer to hawk knock-offs of a rare, archived couture look she recently wore at an award show. Was Kardashian's lawsuit merely a distraction from her copycat criticisms? 

Let's begin with the what, as in what happened: At the annual Hollywood Beauty Awards, Kardashian stepped out with friend and nominee, hairstylist Chris Appleton, wearing a vintage Thierry Mugler gown from the couturier's Spring/Summer 1998 collection. It's the third recent sighting of vintage Mugler on a red carpet, after Rita Ora wore a design in November 2018 at the Evening Standard Theatre Awards and, perhaps most memorably, Cardi B stepping out at the 2019 Grammy Awards in a pink-and-black satin creation from the Fall 1995 Couture collection.

​At 9 p.m. EST the following night, Fashion Nova shared stills of a replica to their nearly 15 million Instagram followers with the caption: "Don't Worry, We Got You Covered," followed by the eyeball emojis, and instructing their customers to search "Winning Beauty Cut Out Gown." That gown, now sold out, ​was retailing for $49.99.

Diet Prada was first to share an Instagram story from model Yodit Yemane, featuring behind-the-scenes images from the Fashion Nova shoot for the dress. When zoomed in, the names of the image files show the date of Feb. 14, four days before Kardashian wore the Mugler. "Kim, you'll never fess up to your sneaky lil collaborations, but we got all the receipts," Diet Prada wrote on its Instagram.

​That's when Kardashian decided she could "no longer stay silent." In a seven-part tweet storm on Feb. 19 at 9 a.m. EST, Kardashian (without calling out Fashion Nova by name) blasted ​the fast fashion retailer and denied any relationship with the site: "As always, don't believe everything you read and see online. I don't have any relationships with these sites. I'm not leaking my looks to anyone, and I don't support what these companies are doing." Shortly thereafter, Fashion Nova gave a statement to TMZ, denying any sort of secret collaboration and asserting their capability at turning over designs "within hours." 

"Kim Kardashian West is one of the top fashion icons in the world that our customers draw inspiration from," they stated. "However, we have not worked with Kim Kardashian West directly on any of her projects but have been driven by her influential style."

That's when the plot thickened. On Wednesday evening, The Fashion Law broke the news that Kardashian is suing UK-based retailer Missguided — not Fashion Nova — for engaging in willful trademark infringement, unfair competition and breach of right of publicity law, which prevents unauthorized commercial use of an individual's name, likeness or other recognizable aspects of one's persona.

The timing is puzzling, to say the least, that Kardashian would choose to go after Missguided as opposed to, or not in addition to, Fashion Nova; the fast fashion lawsuit grants her a headline that makes it appear she's taking legal action surrounding the Mugler dress copycat, when really it's something entirely different. Of course, it's worth noting a crucial legal difference here: In the case of Missguided, they used Kardashian's name and likeness, whereas Fashion Nova never so much as mentioned her, only timed the post so perfectly that the correlation was obvious.

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It turns out, perhaps unsurprisingly, it's complicated — much like a smaller, but similar case we reported on in January, in which Fashion Nova was accused of ripping off an independent designer.

There's not much Mugler can do, assuming it would want to do anything at all, due to the fact that there is no specific part of intellectual property law that protects designers from knockoffs. It is one of the issues that the CFDA was lobbying about for years with the introduction of the now-defunct Design Piracy Prohibition Act (first introduced in 2006).

According to Jenny Odegard, founder and senior attorney at Odegard Law, designers and/or fashion houses can protect their work two ways: through copyrights and/or patents. Since this is not a pattern or a print (think: the Louis Vuitton logo), in this instance, copyright is out. 

As for patent: "In the case of the Mugler dress, it's really unlikely that the company would apply for or pursue a patent for a single item, even if there were a good argument to be made for the novel-ness of the straps," Odegard explains, noting that even if the label had done so when the dress was originally made, that patent would expire after 20 years, and thus this creation would have just missed its protection window.

Odegard does mention one possible outcome that could lead to retribution for Mugler (again, assuming Mugler wants that and isn't themselves involved in some kind of deal between Kardashian and Fashion Nova): breach of contract — but that would depend on there being a contract to begin with.

"Either [through] Kim's contract with the designers (if she has one), or if someone from Kim's camp is leaking, then it might be a violation of their non-disclosure agreement. If Fashion Nova is shown to have induced the breach (by paying the person who leaked, for example), then they could be held liable and its possible they could be forced to pull the dress from production." She adds: "Generally, with the pace of these things, the dress would still go through, and they would fight in court for a while, and then maybe get some of the profits back, which is why it's pretty unusual to sue."

But this is, after all, quite an unusual series of events. That Kardashian did not seek legal action against Fashion Nova, or call the brand out by name in her tweets, does seem a bit suspect considering the timing of the legal action she is taking. Still, there's a world in which all three parties — Kardashian, Mugler and Fashion Nova — are profiting not just from the dress, but the exposure granted through this news cycle. How? It would likely be put together via agents and managers, but, according to Odegard, with strict confidentiality terms.

The possible issue here: "If either [Fashion Nova or Mugler] did commission Kim to do this, it's a possible truth in advertising violation," Odegard explains, adding the caveat that the law may not be up-to-date enough to speak to something this specific. "The endorsement guidelines refer to telling viewers that you like a product, but they don't say what happens if you just wear and identify the source of a product. This situation [could potentially be] somewhere between an endorsement and a product placement, with a sprinkling of a secret 'Kim for Fashion Nova' line in the mix, but without a specific call to action for consumers." In other words, much like the series of events itself, it's all quite murky.

Oprah Winfrey once asked Lindsay Lohan in a 2014 docu-series: "So what is the truth?" When it comes to Kim Kardashian West and fast fashion, we're wondering the same thing.

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