Which leads me to my common and uniform reaction to everything Kardashian: “What the hell were they thinking?”
It is unclear exactly why the Kardashian’s thought they could get away with using the Khroma mark. I have not reviewed the actual complaint, but it appears that they’ve alleged the mark was merely descriptive, and therefore not properly the subject of protection. Frankly, this seems like a silly argument given the fact that they’ve tried to register Khroma themselves, and given the standard regarding merely descriptive marks. Moreover, the Kroma mark has apparently been in use since 2004, so even if it was merely descriptive, it could be registered on the grounds that it had obtained acquired distinctiveness over 5 years of continuous use.
Curiously, a Bold Face representative (the company that markets the so-called “Khroma” line) stated that:
“Boldface Licensing + Branding has gone through the appropriate legal channels in obtaining the rights to use the name Khroma Beauty by Kourtney, Kim and Khloé in the Color Category with the United States Patent and Trademark Office, making all proper legal filings.”
Of course, their going through the appropriate legal channels apparently did not begin until June of 2012.
This case highlights a number of “dont’s” in the trademark world. First, don’t think you can simply change the spelling of a mark to avoid confusion. It is well-settled phonetic similarity is sufficient to find infringement. Second, don’t adopt and plan to use a mark before investigating whether any similar mark (and especially a phonetically identical mark) was registered and in use well before your expected adoption. I’m sure there are many more, but I’ve exceeded my monthly quota for thinking about and discussing the Kardashians.