Taylor Swift recently filed over 100 U.S. federal trademark applications for song lyrics and other phrases, including THIS SICK BEAT, NICE TO MEET YOU. WHERE YOU BEEN? and COULD SHOW YOU INCREDIBLE THINGS, all filed to cover a range of items from ornaments to dinner ware. Other recent trademark filings of note include filings for LEFT SHARK (filed by a company associated with Katy Perry after her Super Bowl performance) and FAMOUS JAMEIS (apparently filed by an agent for Florida State quarterback Jameis Winston).
A self-identified musician/journalist protested Swift’s filings by plastering his own site with the wording “THIS SICK BEAT TM” and calling the filings an “attack on freedom of speech”. The New Yorker magazine even published a spoof with its own list of possible Swift trademarks (our favorites: “I Enjoy Fun” and “Breakups Stink”).
As IP attorneys, we welcome the opportunity to consider what it means to own and register a trademark that is born out of popular culture or a social media trend.
Can Someone Really “Trademark” a Nickname or Song Lyric? The Lanham Act, the Federal statute governing trademarks, generally enables brand owners to protect their trademarks and stop others from using trademarks that are likely to cause consumer confusion as to the source of products or services. Under the law, one can claim rights in a store layout, sounds, colors, even smells. So, there is no reason why Swift’s song lyrics, or LEFT SHARK or FAMOUS JAEMIS, could not function as trademarks if used with sales of goods or services.
What Does Trademark Registration Mean? The benefits of s federal trademark registration are significant, and include nationwide priority rights as of the filing date (even if the trademark is not used or registered until years after the filing date) and a presumption of validity. Registration also puts others on notice of the claimed rights.
Of course, trademark registration does not provide an absolute right to registered material. Ownership rights are directly tied to the Lanham Act’s goal of preventing consumer confusion, and claiming trademark ownership rights is contingent on commercial use of the trademark.
So Why Register a Song Lyric or Nickname as a Trademark? For most of our clients, racing to register every phrase that the marketing department tweets is not worthwhile, since commercial use is required for acquiring and maintaining a registration. Traditionally, we have recommended registration only for trademarks with potential longevity
But in an age of contagious hashtags, going on record with a trademark application is probably the clearest and most efficient way to signal a claim of ownership rights. It also paves the way for sales of of-the-moment trends, including an official “Left Shark” costume.