Utah Theme Park Sues Taylor Swift Over Album Title After Exploiting It

from the wheeee dept

It really is kind of crazy just how often Taylor Swift shows up in Techdirt's pages. One reason for this is that she seems to seesaw in the news between being the victim of and perpetrator of ridiculous intellectual property disputes. The whole "Shake It Off" thing was really silly, for instance, but so were Swift's attacks on fans and journalists over spurious trademark concerns. And, so, she doesn't neatly fit as a hero or villain. Instead, every time her name pops up in intellectual property news, the immediate question becomes, "Which side of it is she on this time?"

Today, that answer is as the victim. See, Swift recently released her album, Evermore, and applied for trademarks for the term, too. Meanwhile, the owner of a Utah theme park that goes by the same name has decided to file a trademark lawsuit against her for using the term, claiming that the album and associated merchandise are creating real confusion in the marketplace.

Federal court documents filed in the Utah District Court show Ken Bretschneider, the chief executive officer of Evermore Park in Pleasant Grove, Utah, has filed a lawsuit against Taylor Swift over her latest album, ‘Evermore.’

Documents filed on Tuesday show 12 exhibits of evidence supporting Bretschneider’s case, including Google search results for Evermore, items of clothing with branding, and two different letters from Swift’s counsel.

The suit makes some of the claims you would expect. And then a couple you wouldn't. It states that the company has poured millions into the branding of Evermore Park, including the purchase of domain names, advertising, etc. $37 million dollars, to be precise. Point of note: Bretschneider himself indicates that the park has had 140k guests since its genesis in 2018. That's roughly $265 in just branding costs per guest...ever. None of that takes into account operational costs for the park, HR, legal, etc. Unless the park charges attendees hundreds of dollars per entry, it's tough to see how this math makes any sense, but I digress.

Because the filing goes on to note that the park commissioned two original songs that it sells on Apple Music under the Evermore trademark it has and that this somehow means it's in the same general marketplace as Taylor Swift. Also, the filing complains that before Swift released her album, the park consisted of the majority of Google search results for "Evermore". Now, not so much.

Is any of this trademark infringement? Of course not! Swift's response to the suit is both good on the merits and quite thorough. It points out that the claims are baseless due to the park and Swift not being remotely in the same marketplace generally, that Swift's use of "Evermore" is actually "Taylor Swift Evermore Album" which is different as a mark, and that the claims of confusion are nonsense... but with a twist!

Second, you have not identified any evidence of actual confusion, likely because there is none. You make the conclusory statement that “Evermore’s web traffic and digital marketing have been negatively impacted since your adoption of the Evermore trademark” and claim that “[d]uring the week of December 6-12, 2020, [your client’s] website traffic experienced a dramatic departure from typical levels.” As a preliminary matter, a change in website traffic does not equate to trademark confusion. Furthermore, even if it did, any dramatic departure from typical levels that occurred from December 6 – December 9 are in no way attributable to the Swift Parties because Ms. Swift’s album name was not announced until December 10. Your attempt to fully impute an alleged decline in email traffic to Ms. Swift’s new album is similarly misguided given the reality of the industry-wide impacts COVID-19 has had on theme parks,4 particularly in winter months as temperatures decline and as case counts are soaring across the country. Lastly, and perhaps most importantly, your client’s social media posts belie this claim as they have intentionally traded off and taken advantage of this alleged attention in a transparent attempt to try to create an association between your client and ours.

Yeah, that's right, the very confusion the park is complaining of is confusion the park itself attempted to foster for publicity.

Bottom line: this is a lawsuit almost certain to go nowhere fast. Claims of confusion are silly, the markets aren't remotely the same, and the marks themselves are different. So, Swift is the victim in this chapter. We'll have to see where she lands next time.


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Filed Under: evermore, ken bretschneider, taylor swift, trademark
Companies: evermore park


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  • identicon
    Pixelation, 4 Feb 2021 @ 8:14pm

    This tragedy requires Swift justice. Shall we call it, "The Battle of Evermore"?

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 5 Feb 2021 @ 1:06am

      Re:

      That was my first reaction, too. Bretschneider should be happy that LZ didn't bother to raise a fuss, and sad that he didn't get any subsequent free publicity. And yes, if the reported attendance records are even close to correct, then indeed there is ample suspicion that this suit may be financially motivated.

      If I were TS, I'd just offer to buy the whole park, lock, stock and barrel, and then turn it into a charitable destination for kids with cancer, or something similar. That'd show Utah's public officials what class looks like, Swift-style. Oh, and buy it for what it's actually worth, not what Bretschneider thinks it's worth.

      reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 4 Feb 2021 @ 8:39pm

    nEvermore

    As only Christopher Lee does it, https://www.youtube.com/watch?v=BefliMlEzZ8

    The brilliant Alan Parsons Project, https://www.youtube.com/watch?v=N3fHbjOsSaE

    And as always, Simpsons Did IT!, https://www.youtube.com/watch?v=bLiXjaPqSyY

    reply to this | link to this | view in chronology ]

  • icon
    Michael Barclay (profile), 4 Feb 2021 @ 8:47pm

    This is why we can't have nice things

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Feb 2021 @ 8:49pm

    Someone is looking for free publicity

    Taylor Swift has a few more fans than some amusement park in UT so yeah, search results for her album will float to the top.

    Also, unless you already know the name I doubt many people search for Evermore Park. They would be better off putting their ad dollars in the local community pages so if anyone visits the area they can click to see the local attractions.

    Heck, they may actually sell a couple of pieces of music when people accidentally click on their tracks when searching Evermore in iTunes.

    Also, I see in the screenshot that the trademark symbol is after Evermore and not Evermore Park. Please don't tell me the idiots at the trademark office gave the mark on the single word.

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 4 Feb 2021 @ 10:04pm

    "That's roughly $265 in just branding costs per guest...ever."

    So... either this a really expensive theme park, or they overspent on what they could expect in return from each guest?

    Let me guess... they made some unfortunate business decisions that left them extremely vulnerable to lower foot traffic due to the pandemic, and their lawyers advised this would be a way to claw that back.

    "Also, the filing complains that before Swift released her album, the park consisted of the majority of Google search results for "Evermore". Now, not so much."

    Between 2010 and 2013, Adam Green's film Frozen consisted of the majority of Google search results for "frozen movie", but since Disney released a film of the same name it doesn't appear on the front page at all. So, obviously Disney need to pay Green a bunch of their revenue in compensation.

    No... that's not how it works at all, is it?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 3:33am

    All I wanted to do was go to the park for a short walk and I ended up with this Taylor Swift album - why was I not protected from such horrific consequences of my own decisions?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 4:26am

    Edgar Allen Poe must be olling in his rave.

    reply to this | link to this | view in chronology ]

  • identicon
    Bodger, 5 Feb 2021 @ 5:07am

    In related news, the estate of Edgar Allen Poe is being sued by several parties for the use of the word "evermore" in his poem "The Raven".

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 5 Feb 2021 @ 6:57am

      Re:

      Quoth the raven: "that's not quite the word I say, but close enough nevermore".

      reply to this | link to this | view in chronology ]

      • identicon
        Benign, 5 Feb 2021 @ 12:40pm

        Re: Re:

        Actually, the word in question is there but obviously less well remembered:

        Ah, distinctly I remember it was in the bleak December;

        And each separate dying ember wrought its ghost upon the floor.
        Eagerly I wished the morrow;—vainly I had sought to borrow
        From my books surcease of sorrow—sorrow for the lost Lenore—
        For the rare and radiant maiden whom the angels name Lenore—
        Nameless here for evermore.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 5:54am

    There are many films with the same name,
    when i want to buy modern folk music ,my first place to look is the local park,
    buts its closed due the pandemic.
    I don,t think the trademark office gives one company a trademark on common single words, apple has a trademark on apple computer,
    there was also a music company set up by the beatles called apple.
    the word evermore has been used before american existed as a country.
    this trademark disputes always accur when a company sues someone rich and famous,
    no one bothers to sue a poor musician who has no money and has a few songs on soundcloud

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Feb 2021 @ 8:08am

      Re:

      I [don't] think the trademark office gives one company a trademark on common single words

      Looking at the complaint in this case, at ¶ 27 on p.6, plaintiff alleges that they have been granted registrations for four trademarks. The first of these four is Reg. No. 4,720,740.

      Rather than looking at Exhibit B attached to the complaint (which the court will do), instead just take a look at the USPTO's status page for the '740 reg.

      If you expand the “Mark Information” section:

      Standard Character Claim: Yes. The mark consists of standard characters without claim to any particular font style, size, or color.

      So, what we're seeing here is that the USPTO has indeed granted a trademark registration for the common single word “EVERMORE”, when “used in commerce“ “in connection with the sale, offering for sale, distribution, or advertising of”:

      Coats; Dresses; Hats; Jackets; Pants; Shirts; Shoes; Shorts; Socks; Sweaters

      (“Goods and Services” section of status page for '740 reg.)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Feb 2021 @ 8:33am

      Re:

      I [don't] think the trademark office gives one company a trademark on common single words

      Years ago, when I was much younger and fitter than I am now, I worked in rugged north-central Nevada on a “lightning claim crew.” It was hard work —up at a little bit of altitude— and good money.

      That land we were working on, iirc, was BLM land. At any rate, the rancher who had the grazing rights, had my boss explain to her that she did not own the mineral rights to that land. So, making the story short, however the exact details went, the gates got opened up for our “lightning claim crew.”

      One of the problems with trademark is that folks often think that having trademark registration means that someone simply owns that word.

      It's not quite like that. It's actually even more limited than grazing rights and mineral rights on BLM-administered public land.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 7:16am

    "no one bothers to sue a poor musician who has no money and has a few songs on soundcloud"

    I would not be so sure about that.

    Reminds me of an old story about Chrysler suing some dude in Wyoming because his Jeep's Bar and Grill was named after him.

    I realize humans can become confused but one can not drive their bar and grill on the road, it is not safe and may result in a citation - not to mention serving alcohol while driving.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 7:29am

    Docket

    Evermore Park v Swift docket (D.Utah 2:21-cv-00069)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 10:50am

    I'll bet Taylor Swift didn't reply to their Tweets, is what happened. (And also apparently they are going to need money from somewhere because wtf.)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 11:34am

    I googled evermore park. I wouldn't call it a boring shithole.

    But thats because they'd probably sue......

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2021 @ 12:40pm

    Gosh, how crazy is it, Taylor Swift's copyright stuff would show up on TechDirt so very often, particularly in stories that are mainly important because they're about Taylor Swift as this story makes pretty clear from the start.

    I don't mind you write about celebrities, like everyone else who wants to piggyback on a celebrity's fame to get a message out. But the gee-wiz tone, like, how Taylor Swift just kinda shows up, as if her being Taylor Swift had nothing whatsoever to do with it, well, it's sort of like, to paraphrase the posting, the very thing the the blog says is "crazy" is the blog's own choice to cover a big celebrity's disputes more often than disputes without a big celebrity.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 5 Feb 2021 @ 11:07pm

      Re:

      So, what's the limit of celebrity that needs to be reached for Techdirt to stop writing about lawsuits that are directly involved with issues at the core of this blog's remit, so as not to offend your delicate nature?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Feb 2021 @ 8:01am

      Re:

      "I don't mind you write about celebrities, like everyone else who wants to piggyback on a celebrity's fame to get a message out. But the gee-wiz tone, like, how Taylor Swift just kinda shows up, as if her being Taylor Swift had nothing whatsoever to do with it, well, it's sort of like, to paraphrase the posting, the very thing the the blog says is "crazy" is the blog's own choice to cover a big celebrity's disputes more often than disputes without a big celebrity."

      Sounds like a Taylor Swift fan.

      reply to this | link to this | view in chronology ]


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