This month, Kim Kardashian West announced that she would be releasing her latest fragrance, KKW Body Perfume – and that the bottle had been made from a mould of her naked body.
Almost as soon as she revealed the bottle, comments came flooding in that she had copied Jean Paul Gaultier‘s iconic Classique fragrance bottle. And now, the designer has had his say too.
— Johnny Cyrus (@ItsJohnnyCyrus) April 30, 2018
This weekend, the brand’s Instagram page appeared to subtly take a swipe at Kardashian, without actually mentioning her name. Three images were posted, with the caption of one reading: “Keeping up with the fragrance’s news” – a clear reference to the reality star’s show Keeping Up With The Kardashians.
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Kardashian had actually already responded to claims that she had copied the fragrance last week when fans accused her of using Jean Paul Gaultier as her inspiration. She told Cosmopolitan: “Sculptures were my inspiration…I wanted mine to be really personal with my exact mould, but I’ve always loved the Jean Paul Gaultier bottles.”
While Kardashian and Gaultier’s fans are fighting one another on the issue, The Fashion Law has looked into whether there is actually a legal battle to be had here. And the answer is, essentially, probably not.
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In terms of a copyright infringement claim, Gaultier would not be able to successfully sue as there are marked differences between the two bottles. For example, Kardashian has added shoulders, belly-button detail and is clearly naked, whereas the Gaultier fragrance is a depiction of a woman wearing a corset.
Although the idea might be the same (a woman’s body as a perfume bottle), ideas are not protected in copyright infringement claims. Therefore, The Fashion Law states that Gaultier’s only route would be to go down a trade dress infringement claim, which would have to prove that seeing Kardashian’s bottle conjures up images of Gaultier’s.
“The appearance of the bottle, itself, must be recognisable to consumers as originating from a specific source in much the same way a swoosh indicates the Nike brand to consumers or the Toile Monogram serves as an immediate identifier of the Louis Vuitton brand in the minds of most consumers.”
Even if this was able to be proven, The Fashion Law argues that due to the height of Kardashian’s fame, it would be unlikely that consumers would not be able to recognise her fragrance in being distinct from Gaultier’s. However, Gaultier may decide that it’s still a battle worth pursuing.
This article originally appeared on Harper’s BAZAAR UK.