Kendall Jenner Files Right of Publicity Suit

On February 10, 2016, Kendall Jenner and Kendall Jenner, Inc., filed a right of publicity and trademark infringement suit in the Central District of California against Cutera, a provider of laser dermatological treatments. The case is Kendall Jenner Inc. v. Cutera, CD California, 16-00936.

Who is Kendall Jenner? Well, she is “one of the one of the world’s most popular supermodels” [sic] as the complaint explains (or hiccups?). She has “graced the covers of the world’s most prestigious fashion magazines” and “walked the runways for the elite of the fashion world.” She also is a “successful clothing designer” and a “well-known television personality” as the Keeping Up with the Kardashians reality show airs “in over 160 countries worldwide” (you read that right).

 

If all these achievements would not be enough, Ms. Jenner is also “one of the largest social media presences of any young woman of her generation,” with over 48 million followers on Instagram, over 15 million followers on Twitter, and some 12 million “likes” on Facebook. Wouldn’t it be nice if Ms. Jenner tweeted about this blog post?

Defendant Cutera is, according to the complaint, a “designer of medical aesthetic applications.” One of its products is Laser Genesis, a laser treatment which dermatologists may use to rid their patients of spider veins, dark spots, wrinkles, and other skin defects.

Just before the beginning of Fashion Week in New York, Cutera started advertising early February the Laser Genesis treatment in New York, particularly “outside New York skin care centers.” The ad features a picture of Plaintiff on the right side and reads at the top: Acne “Completely Ruined” Kendall Jenner’s Self-Esteem. The ad further claims that Laser Genesis is responsible for Plaintiff’s “nearly flawless skin.” The ad has also allegedly been distributed in California, around the U.S. and even around the world.

Alas, Defendant had allegedly not sought permission to use Plaintiff’s name and likeness. If this is proven, it would clearly be an infringement of Ms. Jenner right of publicity.

I will not address the trademark infringement claim in this post. Let’s just note that Plaintiff owns the KENDALL JENNER registered trademark in class 35 for “advertising services, namely, promoting the brands, goods and services of others” and “endorsement services, namely, promoting the goods and services of others.” The complaint alleges that Cutera’s ad is likely to create consumers ‘confusion, and capitalizes on Plaintiff’s good will. The complaint also alleges that the ad confuses the public to mistakenly believe that the famous model sponsors, endorses and is somewhat associated with Cutera, which would be a false association or endorsement under 15 U.S.C. § 1125(a).

Plaintiffs claim that Defendant has violated Ms. Jenner’s right to publicity, as protected by California Civil Code § 3344. The complaint does not elaborate on the right to publicity claim, but indicates that “Plaintiffs have suffered and will continue to suffer damages in an amount to be proven at trial, but not less than a number well into eight figures.”

Indeed, it is obvious that it is Ms. Jenner who is pictured on the ad, and therefore she is, under the California statute, “readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use” (the ad is pictured p. 11 of the complaint).

 

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