Introduction

Kim Kardashian faces a lawsuit from the Donald Judd Foundation for allegedly using and promoting knockoff furniture in her office tour video. While Kardashian’s counsel denies liability, the case underscores the importance of due diligence in endorsements. Scott Hervey and Jamie Lincenberg from Weintraub Tobin dissect the legal drama in this installment of “The Briefing.”

Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here.  

Show Notes:

Jamie Last week, the art world was buzzing with yet another dupe scandal. Kim Kardashian has been sued by the Donald Judd Foundation for using and promoting knockoffs of the late designer’s furniture. We will dive into the details of this case on today’s episode of “The Briefing.” I’m Jamie Lincenberg of Weintraub Tobin, and I’m joining my colleague, Scott Hervey, on today’s episode of “The Briefing.”

Scott Thank you for joining me today, Jamie. Can you provide us with a recap of how this case came about?

Jamie Of course. Yeah. In a lawsuit filed just two weeks ago on March 27th in California’s district Court, the foundation of artist Donald Judd, who passed in 1994, known famously for his minimalist designs, is suing reality television star and entrepreneur Kim Kardashian and the Los Angeles-based interior design firm, Clements Design, the company who’s been faulted for fabricating and selling allegedly infringing tables and chairs to Kardashian. The lawsuit asserts that the firm sold Kardashian fakes of Judd’s tables and chairs for the offices of Skin by Kim, which is Kardashian’s skincare company, and accuses Kardashian of false endorsement and Clements Design of trademark and copyright infringement, false advertising, and unfair competition.

Scott So this dispute stems originally from a video Kardashian posted on her personal YouTube account. Where she gave a tour to her followers of the Los Angeles office of her skincare brand, Skin by Kim. It’s just a typical house tour, office tour-type video that influencers do. In this video, while showing a large communal kitchen and dining room, Kardashian said, “If you guys are furniture people, I’ve really gotten into furniture lately. These Donald Judd tables are really amazing, and they totally blend in with the seats.” As of late January of this year, the video had been viewed more than 3.6 million times, and this video was then subsequently removed from YouTube a few days after the lawsuit was filed.

Jamie That’s right. So shortly after the video was posted, the Judd Foundation contacted Kim Kardashian and Clements Design, demanding that those furnishings in question be destroyed or recycled and that Kardashian issue a public statement. Kardashian ultimately declined to replace the furniture, retract the video, or issue a corrective statement. Her reps instead offered to update the caption information in the video and to create a separate social media post in which she would promote the Judd Foundation. The foundation rejected that as that would, of course, still allow the knockoff furniture to remain in the video online.

Scott When the foundation learned that Clements Design, which is a well-known celebrity design firm, and apparently, they also custom-make furniture pieces. When they learned that Clements Design had made the knockoff furniture, it asked for an agreement that the design company would never make and sell fake Donald Judd furniture again and that it would return and recycle Kardashian’s furniture, according to the complaint. But the design company rejected both requests and denied the foundation’s rights to the furniture design.

Jamie So, the foundation has now filed suit and is seeking injunctive relief, a retraction of the video by Kim Kardashian. Issuance of a corrective statement, recycling of the inauthentic furniture, and any profits that Kardashian and Clements’ design may have received from the purported misrepresentation of the tables and chairs in question, as genuine Judd works.

Scott The foundation argues that consumers are likely to believe that the Judd Foundation and the Donald Judd brand are connected or affiliated with or otherwise sponsored or endorsed by Kardashian, which is particularly is misleading because the Judd Foundation categorically prohibits customers from using purchased Judd, Donald Judd furniture from marketing and promotional purposes.

Jamie In an online statement, Rainer Judd, Judd’s daughter who leads and is the President of the foundation, says that the furniture in question is irrefutably fake and that the existence of inauthentic furniture undermines the integrity of Judd’s original work, which includes specifications of design, craftsmanship, and materials. In its argument, the foundation cites a design proposal, Clements Design created for Skin by Kim, that includes dining tables in the style of Donald Judd and dining chairs in the style of Donald Judd. The accompanying illustrations of the products being offered, as the lawsuit claims, are actually photos of authentic Judd furniture. His, and I might pronounce this wrong, La Mansana Table 22 and Chair 84, which are iconic pieces amongst furniture designers and collectors since they were first produced in 1982.

Scott The lawyer for the foundation says that this case is about protecting the intellectual property rights of the Judd Foundation, including its trademark and copyrights. The fake furniture has the ability to cause massive consumer confusion, with millions of Kardashian followers being misled to believe that the furniture in Kardashian’s office is real Donald Judd furniture. The Judd Foundation claims that this undermines the foundation’s ability to control the quality of the works created using Judd’s iconic designs and the goodwill that exists in those creations.

Jamie Kardashian’s outside counsel has denied any liability in this matter, and Clements Design has issued a statement that the foundation’s claims have absolutely no merit. We’ll need to keep up with the case to see where it goes. But in summary, I do think that this brings up a really important and relevant topic today, where in today’s world, copies and dupes and knockoffs, however you want to define it, seem to really be everywhere. These influencers and celebrities with massive audiences need to take responsibility for their actions. It’s a lesson to truly do your due diligence before maybe touting around the name of an artist or brand. When you’re not 100% sure that it’s the real thing. I do see this happen all the time. Scott, do you have any insights or takeaways from this as well?

Scott Yeah. Look, we all know that in an endorsement situation, the endorser, so usually a celebrity or some influencer, has a truthfulness requirement under FTC guidelines. We did a whole podcast episode on that. They have an obligation to make sure that what they’re saying is truthful. Not only the endorser does, but the brand does as well. However, my understanding of this particular post is that it was editorial. This is not commercial speech. This was not an endorsement of Clements Design. At least, this is my understanding. I didn’t see any indication that this was a sponsor, that the office tour that Kim Kardashian did was a sponsored post that was sponsored by Clements Design. I’m going to go with my understanding that this is all editorial.

Jamie Yeah, I think you’re probably right on that,

Scott. And that’s probably why the foundation only brought that one cause of action against Kardashian, the false endorsement claim. Scott Right. I mean, they did bring a bunch of other claims against Clement’s designs, and we’ll see how that shakes out, it’ll be interesting. But we’re really just talking about the endorser liability, Kim Kardashian’s potential liability here. Look, if this were an advertisement or commercial speech if this were not editorial, but if Clements Design had paid her, then she may have liability under the false endorsement claim under the Lanham Act and maybe under other claims as well. But because this was not a paid-for speech, because this seems to be just purely editorial, I don’t think it meets the requirements of the claim under Section 1125A because it’s not used in connection with goods or services. I think that the Judd Foundation will have a tough time. I agree with you that endorsers have a huge obligation to make sure that when they are giving commercial speeches, they are giving paid endorsements and that what they’re saying is truthful because they have their own individual liability and issues dealing with the FTC. But in editorial, unless she knew that this was not true or unless I mean, I don’t know. I could see her saying that Kim Kardashian, she was under the mistaken belief that in the style of Donald Judd meant Donald Judd, that the two are interchangeable, that the style of Donald Judd is Donald Judd. I could see her taking that position and really having that understanding and not meaning to imply that these particular pieces of furniture were made by Donald Judd, which would be literally impossible because he’s dead. I guess we’ll see how this shakes out. As for your take on endorser liability and endorser responsibility, I agree, but I don’t think that Kim Kardashian truly faces any liability here.

Jamie Right. Well, I do wonder why her camp didn’t just take the video down. What was the harm? I think about when the foundation first approached them and said, “This is not true Donald Judd furniture, and you are posing as if it was; please take this video down.” I don’t know. I don’t know why, but I guess the tour of the office was very important.

Scott Well, I think the Judd Foundation was asking for a lot more than that in their initial letters. Weren’t they asking her to destroy the furniture? It’s like, No. I mean, even though it’s not designed by, I mean, made by Donald Judd, it’s still custom-made furniture. It’s still beautiful, and I’m sure it was very, very, very expensive. Unless the foundation is going to pony up the money for Kim Kardashian to buy new furniture, I mean, it would be fiscally irresponsible for her to destroy that furniture.

Jamie I don’t know. I don’t think she needs anybody’s money at this point. Scott Well, I mean, and by the way, I don’t think any judge would require the destruction of that furniture. We’ll see. We’ll see. Hey, thanks for bringing this case to our attention; it was quite interesting. We’ll follow it as it goes on. Jamie We will.

Scott Thank you for listening to this episode of “The Briefing.” We hope you enjoyed this episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.