Random thoughts on Ms Swift's "sick" trade marks

Taylor Swift and her recent US trade mark applications have made headlines and even inspired those who usually do not care about IP and/or trade marks to comment about them.  Indeed, this Kat has been asked about her thoughts on Ms Swift’s trade marks quite a lot by non trade marky friends, also comparing it to the Rihanna t-shirt case.

In kitten heels, no less...

By way of background:  Ms Swift, a pretty and successful US songstress, recently filed a number of trade mark applications at the US Patent and Trade Mark Office for word marks.  The marks are lines or quotes of lyrics from songs or song titles of her most recent album 1989. Ms Swift’s applications include applications for the phrase “THIS SICK BEAT”, “PARTY LIKE IT’S 1989”, “CAUSE WE NEVER GO OUT OF STYLE”, “NICE TO MEET YOU. WHERE YOU BEEN?, “COULD SHOW YOU INCREDIBLE THINGS”, all used in her various musical offering, including her hit song 'Shake it off'.

Legal commentators got equally excited and discussed the pros and cons of Ms Swift’s filing strategy in much detail, notably on various LinkedIn groups.  Why did she file separate single class applications covering unusually broad specifications (by US standards) for each class, when the US allows for covering them in one application? Maybe to make licensing easier? To use the applications as bases of an International trade mark or for national priority applications and to make it administratively easier to pick and choose which ones to designate in which territory, notably for countries where copyright protection for song titles and short citations would be tricky to obtain? Indeed, to allow the marks to move to full registration more quicly in case of a citation of an earlier mark by the USPTO examiner in just one class. To enable swift (ha..!) enforcement, since we all know about the perils of having to rely on unregistered rights in their various guises.  … etc. etc.  The list of questions and potential answers is long but the filing strategy appears more or less straightforward.

Of course, filing these marks is about money, protecting her rights, her brand and IP from unauthorised exploitation (i.e. by way of merchandise) by third parties; the latter also applies to Rihanna. And let’s not forget the counterfeiting aspect.

"Money, money, money.... " -
did ABBA ever trade mark their song title?

Intriguingly, however, Ms Swift’s applications seem to have triggered a wider debate and there is indeed another aspect to this discussion, the “freedom of speech” angle.  The criticism can be distilled by what US writer, musician, moral commentator Ben Norton has written on his website. He calls Ms Swift's trade mark applications an example of the "ridiculous ability of the rich to legally own words".  Ms Swift’s applications even inspired him to write a protest song. He blogs: 

“This Sick Beat™, [is] a satirical parody song I released on 31 January 2015, in protest of Taylor Swift’s application to trademark several common phrases, has generated much controversy.”  

Looking at his website Mr Norton's intention seems to be to provoke and make people think.  In essence, he argues that Ms Swift’s trade marks are "a direct attack on one of the most fundamental and inalienable rights of all: our freedom of speech".  

Freedom of speech is one of the most important rights in a democracy but it should it not also be counterbalanced against other human rights, such as in these example Ms Swift’s intellectual property rights, basic rights in her own intellectual creation, i.e. her “property”?  This includes her freedom of speech and right to express herself in an artistic way and protect this expression against third party exploitation without her consent.  Her trade mark registrations, if and when granted, will not prevent all use of the expressions used as marks, but use as a trade mark , i.e. they will empower her to enforce her rights for the goods and services covered with her trade marks.  As such, she won’t own the words - and I suspect Mr Norton is fully aware of this. Perhaps what really irks him is that some of the marks are “common phrases”, as he puts it.  He should, however, put some trust into the USPTO examiners and their examination process.  Having said that, from a trade mark practitioner’s perspective, it is to be welcomed that trade marks are in the news and that people talk about them. 

Nonetheless, it is not unusual that celebrities file for trade mark protection to protect their IP. So why is this such an issue in Ms Swift’s case and –- to a lesser extent -– in the case of Rihanna’s passing off court case? Could it be that this is because these are two young, pretty and successful women that have the audacity to also have some business sense?  Like colleague of mine said wisely, if it was Kanye West who is known for his business acumen, people wouldn’t comment much, if at all.

So, Merpel wonders, is there a feminist angle to the debate: do people feel entitled to complain because they are women (in kitten heels) ...?