Earlier this week, Taylor Swift caused an outcry on the Internet (like she does) by applying for trademark registrations for a number of lyrics from her recent smash album, 1989, including “This Sick Beat”, “Nice to Meet You. Where You Been?”, “Could Show You Incredible Things”, and “Cause We Never Go Out Of Style”.
The registrations even inspired a protest song by a metal band that, while really funny, seriously confuses basic IP law.
But really, it’s gonna be alright, everyone.
First, Swift hasn’t even received any registrations yet. She has only filed intent-to-use applications with the Patent and Trademark Office. As Mark H. Jaffe of Tor & Ekeland PC, New York, wrote in an incisive blog post on his firm’s website, intent-to-use means that Swift will still have to use the marks on goods in the applied-for categories in commerce before receiving federal protection.
She will also have to convince a trademark examiner that the marks are source identifiers, meaning that “This Sick Beat” must be generally promoted and recognized as a Swift-related phrase, or that Swift controls the use of “This Sick Beat” on goods. And as Jaffe notes, Swift already manufactures and sells many of the types of goods covered by the applications, which will make it much easier for her to prove control of the mark.
Incidentally, these standards probably explain why Swift attempted to register the lyric “This Sick Beat” instead of the song title “Shake It Off”—there are other songs called “Shake It Off” by Mariah Carey (which was successful enough to peak at Number 2 on the Billboard Hot 100 in 2005), Wilco, and many others, as well as three active trademark registrations for the phrase. “This Sick Beat” is likely more distinctive—there are no songs on Spotify with that title, and no existing trademark registrations for the phrase.
In addition, registering trademarks for song lyrics doesn’t mean that other musicians can’t use the lyrics in their songs, it only means that nobody else can use that phrase to sell the types of goods covered by the registrations—song lyrics are copyright territory anyway, and using one of the Swift phrases in your song is highly unlikely to open you up to copyright infringement claims. So a registration for “This Sick Beat” clothing makes sense if you imagine, for example, bootleggers selling “This Sick Beat” shirts outside of Taylor Swift concerts.
This isn’t a situation where someone is attempting to register humorously broad marks like, oh, the number 12. Most of the marks at issue are at least arguably distinctive Taylor Swift references, although “Party Like It’s 1989” may give Prince pause. The set of goods covered by the applications is broad, but could be narrowed naturally; extraneous classes could be shed away after registration upon renewal of the mark, when Swift amends the classes following use of the marks on specific goods in commerce.
So let’s go a little bit easier on Taylor Swift this time, Internet. While you’ve been getting down and out about the dirty, dirty trolls of the IP world, you could have been getting down to…well, you know the rest.
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