March 2, 2021
Taylor Swift may be a successful chart-topping songstress, but the ‘Shake it Off’ popstress cannot seem to shake off her legal issues.
You may recall, not long ago (July 2020, to be exact), the popstress released her eighth studio album entitled The Folklore. Unfortunately, she was forced to rename the album following a complaint of trade mark infringement from a fashion brand called The Folklore.
It seems as swiftly as the popstress had resolved the earlier lawsuits; she finds herself in another IP-related infringement claim. This most recent lawsuit bears striking similarities with the previous case. A US-based theme park called Evermore Park has issued a trade mark infringement suit against the popstress following the release of her newest album entitled Evermore, which Evermore Park claims is infringing on its trade mark.
Evermore Park, a fantasy world theme park based in Utah, has been in operation since September 2018 and has a number of registered US trade marks for goods in class 25 (apparel) and services class 41 (entertainment services). Evermore Park’s trade mark registrations date back to as early as April 2015, indicating that Evermore Park does indeed hold earlier rights in the word EVERMORE.
On this basis, Evermore Park claims its online presence and Google search engine results have been negatively affected due to the release of her newest album. Evermore Park is seeking an eye-watering $2 million in damages.
In the UK, the general principle is that a trade mark will be infringed if, during the course of trade, a third party uses (without consent) a mark that is identical or similar to a registered trade mark in relation to identical or similar goods and services to which the trade mark is registered, and, in each case, there exists a likelihood of confusion on the part of the public, which includes a likelihood of association.
Evermore Park is alleging that the album release has caused confusion amongst consumers as to whether the two entities are linked. Ms Swift’s legal representatives have denied any liability and branded Evermore Parks infringement claim as “frivolous and irresponsible”.
It remains to be seen whether the parties will reach an amicable resolution or whether Evermore Park will be progressing this infringement claim all the way to court. Whatever the outcome, this serves as a cautionary tale, regarding the importance of careful due diligence and preliminary clearance searches to identify prior trade mark rights.
We find in practice clients that proceed with launching products and/or services without conducting due diligence, usually and find out they are at risk of a trade mark infringement claim as there is an existing trade mark registered for the same name. Here at Briffa, we are available to assist with preliminary searches or if you find yourself in the unfortunate position as Ms Swift, do get in touch as we would be happy to assist you.
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