TAYLOR SWIFT: EVERMORE OR NEVERMORE?

Taylor Swift has been the queen of making everyone else seem unproductive during quarantine. While everyone else was adjusting to remote work and life without restaurants, Ms. Swift was recording and releasing not one, but two new albums in 2020, folklore and evermore. Both albums were released to critical acclaim and wide success, but not without a little trademark infringement legal drama. 

In Pleasant Grove, Utah, a struggling theme park called Evermore Park heard about Ms. Swift’s newest album that shares a name with the park in question. Immediately, Evermore Park filed a lawsuit for trademark infringement. The primary basis for the suit is the registered mark No. 5597168 “EVERMORE” for Entertainment services in the nature of live visual and audio performances by an actor. The lawsuit alleges that website traffic and sales have gone down and that the park's musical score sales on Apple Music have significantly decreased since the introduction of Taylor Swift’s Evermore.

SO HOW DOES TRADEMARK INFRINGEMENT WORK?

Trademark infringement occurs when someone is using the distinguishing mark of another and trading on their brand or goodwill. For example, if I start selling Frankenstein computers that I built myself and putting a very distinctive Apple sticker on them, that would be trademark infringement. Trademarks are intended so that consumers can immediately know the source of a product without confusion. In the example above, an average consumer associates the picture of the apple with the brand “Apple” and might believe that my products came from the Apple we are all familiar with. There is also concern that if a company has spent a lot of time creating brand recognition, another entity using the same name would benefit from those efforts and be unjustly enriched with free publicity and marketing. 

The general standard for trademark infringement is “likelihood of confusion,” which is the crux of Team Swift’s argument. If goods or services are very different (think Dove Chocolate and Dove Soap) then identical trademarks can exist in harmony. The purpose of a trademark is not to prevent anyone from using that name in any context, merely to prevent confusion. 

So in this case, the theme park will need to demonstrate that their consumers are looking for their musical scores on iTunes and purchasing the Taylor Swift album instead, thinking it is the score from the theme park. Evermore Park, so far, has not provided any evidence that they have lost business due to the Evermore album or that anyone has assumed that Ms. Swift’s album was sponsored, endorsed, or made by the theme park. This case is still young and more evidence might come out. But wait… there’s more.

THE PLOT THICKENS

As the saying goes, those in glass houses shouldn’t throw stones. As it turns out, Evermore Park has been allegedly engaging in a bit of intellectual property theft itself. A countersuit, filed by Team Swift, alleges that the Park has willfully performed Taylor Swift’s songs, specifically “You Belong to Me”, “Love Story”, and “Bad Blood”. Team Swift has provided multiple cease and desist letters sent to the theme park starting from 2019 putting the theme park on clear notice that they did not have permission to use and perform the copyrighted works of Ms. Swift. Specifically “[a]t a section of Evermore Park known as “the Burrows,” two actors regularly and routinely perform copyrighted songs, including the Works at issue in this action, to large crowds of patrons at Evermore Park.” Coincidentally, when Evermore Park discovered that Team Swift had this evidence, they immediately attempted to acquire retroactive licensing, all but admitting infringement. 

WHY SHOULD I CARE?

There are different types of intellectual property protections for different materials. Trademarks protect brands, and copyrights protect creative works. It’s important to make sure you are fully protected and in the right way. It is also important to discuss your options with an experienced intellectual property attorney and get all your questions answered before you are in a legal war with Taylor Swift… or anyone else for that matter.

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