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