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Most of you will have heard of Taylor Swift and even have some of her music. She is a singer of considerable acclaim who released her ninth studio album “Evermore” on December 11, 2020. This album debuted at number one on the Billboard 200.
But all does not look good in the world of the singer sometimes known as Tay Tay. Apparently, “Evermore” is also the name of a theme park in Utah, United States.
Since the release of Tay Tay’s album, her website has seen a “dramatic deviation from usual levels” in traffic.
There now seems to be a bit of bad blood, as the owners of the park have now sued her for trademark infringement. Regarding the name “Evermore”, the owners of the theme park say “you belong to me”.
Lawyers for Taylor Swift reportedly responded that “there was no basis” for the claim. That doesn’t mean she’s out of the woods, but we’ll be watching her with interest.
In the meantime, it’s interesting to wonder if if this kind of lawsuit were to be brought in Australia, she could just get rid of it or would she be treated with the JJJ Hottest 100 treatment?
Would tay tay be in trouble in Australia?
For a trademark registered under the Trademarks Act 1995 (Cth) to be violated by the use of a sign (i.e. name, logo, shape, etc.), there are three requirements:
- the alleged infringer must use his sign “as a trademark”;
- the sign of the alleged infringer must be substantially identical or falsely similar to the registered mark; and
- the alleged infringer must use his sign in connection with products or services similar to the products or services for which the mark is registered, or in connection with services or products closely related to these products or services.
What it means to use a sign “as a mark” is critical. As defined in Trademarks Act 1995, a trademark is “a sign used, or intended to be used, to distinguish the goods or services treated or supplied in the course of trade by a person from the goods or services so treated or supplied by any other person”.
This was illustrated in 2020 by a decision by IP Australia in the case of Long Way Home Holdings Pty Ltd v Saroo Brierly Enterprises Pty Ltd [2020] ATMO 109. Saroo Brierly Enterprises Pty Ltd (SBE) is the company of Saroo Brierly, the subject of the Oscar-nominated biopic “Lion”.
SBE has applied for registration of the trademark “LION” in Australia for theatrical productions, musical productions and similar services. This request was opposed by Long Way Home Holdings Pty Ltd (LWH), a company linked to the producers of the film “Lion”.
In rejecting LWH’s opposition, IP Australia followed the 2009 decision of the Court of First Instance of the European Communities (Second Chamber) in Danjaq LLC v OHIM (T-435/05) [2009]. This case concerned the title of the film ‘Dr No’ and ruled that a film title is an expression of artistic origin, but not commercial and, as such, not a trademark. If a movie title is not a trademark, then LWH was not the actual owner of the “Lion” trademark and failed to oppose SBE’s application on this basis.
While both cases concerned film titles, the Registrar’s representative fully accepted the position in the “Dr No” case, which in turn had stated that “comics, music recordings, books and posters With the signs “Dr No” were also not used as marks. As such, this position is not limited to movies.
take points
So Tay Tay would probably be safe in Australia.
What are the lessons?
Although there is no risk of trademark infringement, the presentation or promotion of a book, movie, album, etc. the wrong way can still be deceptive and deceptive, in violation of Australian Consumer Law.
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