TALLAHASSEE — In the trademark case between the Kardshians and Kroma Makeup EU LLC, the Kardashians might be pushing to compel arbitration for privacy, said Sarah Bro, partner with McDermott Will & Emery LLP.

“Arbitration is a private process between the parties and the arbitrator, while litigation is carried out in a public courtroom,” Bro told the Florida Record.

Bro also gave a few other reasons why arbitration is a positive move for the Kardashians in this case.

“Arbitration is usually less costly and less time-consuming than litigation, and the process is often more flexible, allowing the parties to set certain rules pertaining to the hearing process and pre-hearing formalities, such as the exchange of evidence or questioning of witnesses," she said.

By compelling arbitration, there will be “little or no option for appeal, which can help to avoid a drawn-out litigation that can be appealed at various stages in the process,” Bro said.

However, the U.S. Court of Appeals for the 11th Circuit determined in a previous ruling that the Kardashians were denied their opportunity to compel arbitration. This was a result because they are not considered parties to the contract that included the applicable arbitrarily clause.

In addition to the court not naming the Kardashians as part of the parties in the agreement, they “focused on the specific language of the trademark license agreement which stated that arbitration was agreed upon for 'disputes arising between them,' meaning the trademark owner and the trademark licensee," Bro said. 

"The court’s decision means that the Kardashians will be required to defend against Kroma Makeup EU’s trademark infringement claims in court, rather than in a private arbitration proceeding,” Bro said.

Even though the court ruled against arbitration of the Kardashians, they feel “they should be able to invoke the arbitration clause in the trademark license agreement because Kroma Makeup, EU is relying on its rights under the trademark license agreement to assert its trademark infringement claims in the lawsuit against the Kardashians.”

Since then, the Kardashians have asked the Florida Supreme Court for further clarification on the ruling from the 11th Circuit.

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U.S. Court of Appeals for the Eleventh Circuit
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