Old Navy’s “Super CUTE” television ad features a campy brunette with a heart-shaped face. Purported look-alike Melissa Molinaro’s hair is swept to one side in a ponytail. Does the ad violate Kim Kardashian’s rights of publicity and confuse or deceive the public?
In a court complaint filed today, Kardashian claims that the spot misappropriates her valuable identity by using a look-alike to conjure up Kardashian’s persona. Molinaro wears Kardashian’s trademark hairdo and does a campy imitation of Kardashian’s personality. The reality television actress seeks legal remedies under trademark, false advertising and rights of publicity laws. Trademark infringement requires consumers to be confused as to who is the source of the Old Navy actress’s services. IMHO, Kim and Melissa could easily be mistaken for each other, and I am not alone.
Judging from some comments posted to articles display, there could be some confusion among consumers that Kardashian performs in the Old Navy spot. If consumers are deceived, the ad may comprise false advertising. Possible. But on the other hand, Old Navy is known for clever parody ads. Savvy consumers know the actress is a look-alike. To receive remedies for a violation of her right of publicity, Kardashian must show that her persona has commercial value and was used commercially without her permission. Kardashian seems to sell magazines and glue eyeballs to gossip sites, so commercial value seems evident. Despite her public figure status from appearing in a reality show, commercial use of her likeness is her livelihood and the law protects it.