Will The Music Industry’s Trending Trademark Frenzy Undermine Trademark Law?

The music industry has significantly changed in light of the popularity of streaming media, making it harder for artists to monetize their music based on traditional models such as record sales and concerts. Merchandising has become a lucrative supplement to album sales and some artists are seeking to capitalize on this trend through the U.S. Patent and Trademark Office (USPTO). Popular singers like Taylor Swift and Beyoncé are ensuring that no one else may profit from using their likeness by filing for and asserting trademark ownership over any and everything that relates to their person or their work. However some think that this trademark frenzy may undermine the very purpose of trademark law—to prevent the likelihood of confusion.

Taylor Swift, a former country artist turned pop singer, has been stirring up a great amount of controversy for her recent attempts to monopolize the use of phrases from her 1989 album. She has filed trademark applications for phrases such as "this sick beat," "party like it’s 1989," "cause we never go out of style," "could show you incredible things," and "Nice to meet you. Where you been?" In all, Swift filed forty-one separate trademark applications across sixteen different classes for those five phrases. If approved, she could prevent others from legally commercializing the phrases on everything from home-decor, all-purpose carrying bags and wallets, to umbrellas, paper products (including transferable tattoos), Christmas ornaments, key chains, walking sticks, makeup and cooking appliances. However the trademarks are still pending approval and the USPTO has recently sent non-final office actions requesting additional information.

Despite her pending legal rights on 1989 phrases, Swift has received trademarks for common phrases such as "Speak Now" and "Fearless," and her attorneys have issued multiple cease and desist letters to the popular peer-to-peer e-commerce site, Etsy, for selling merchandise containing her verbatim music lyrics. Similarly, Beyoncé recently issued a cease and desist letter to Etsy for selling mugs containing the word "Feyoncé" (with the "o" shaped like an engagement ring). Most of the Etsy sellers were forced to remove the items in accordance with Etsy’s IP guidelines and DMCA requirements, although in some cases the issue of trademark infringement may have been contestable under the likelihood of confusion theory.

Christopher Sprigman, an Intellectual Property Professor at NYU School of Law, notes that trademark law exists to protect consumers from confusion at the time of purchase by allowing them to identify the source of products. Although this protection oftentimes allows trademark owners to profit from the exclusive use of certain trademarks, trademark law does not exist to protect the creator of marks from the loss of profits. So when it comes to Taylor Swift and Beyoncé suing Etsy sellers, the question should be whether people buying a Feyoncé mug or an ornament with "this sick beat" written on it from a do-it-yourself Etsy seller will think the item is being directly sourced (or licensed) by Beyoncé or Swift, respectively. Although Sprigman doubts that people would be confused in that context, according to him "the law in the books is different from the law in the streets" and trademark law often gives people rights in the real world that they do not legally possess. Since many people cannot afford to battle it out with Swift or Beyoncé’s lawyers, they simply give in to the cease and desist requests.

However, Sprigman cautions that if the USPTO constantly grants Taylor Swift and other famous musicians the rights to popular phrases and idioms such as "this sick beat," trademark law will be in big trouble. "[L]ife [will] evolve such that regular people walking around [will] begin to think that every time they see some phrase associated with a celebrity on a t-shirt, that shirt must be licensed by the celebrity." This would indeed defeat the purpose of trademark law, but only time will tell whether artists such as Taylor Swift will ultimately dictate whether we can "Speak Now" or would need to first request her permission.

Sources: Justia; Think Progress; Fast Company; USPTO