Singer-songwriter Taylor Swift is primarily known for her musical talents, but the pop star has recently made headlines for her work in the intellectual property realm. According to the database of the United States Patent and Trademark Office (“USPTO”), Swift has filed several trademark applications to register catchphrases from her 2014 album 1989. Swift has filed applications for registration of “Nice to Meet You. Where You Been?”, “Could Show You Incredible Things”, “Cause We Never Go Out of Style”, “Party Like It’s 1989,” and “This Sick Beat.” In the applications, Swift indicated that she plans to use these phrases on a plethora of different merchandise including apparel, paper products, toys, household items, and Christmas ornaments.
Because less people are buying full albums—instead opting for MP3s of single songs and streaming services—attempting to trademark lyrics may be a shrewd, yet smart, business move. Phrases can immediately “go viral” in today’s Internet age, and a person’s potentially marketable phrase may be quickly used by another for profit. For example, the phrase “Ain’t Nobody Got Time for That,” exclaimed by Kimberly “Sweet Brown” Wilkins in a local news interview turned Internet viral video, is the subject of a pending trademark application filed by Ebony Arrington, who uses the phrase “Ain’t Nobody Got Time for That!” as the title of her regular radio bit. Ms. Arrington has disclosed that she got the name for this radio bit from the “Sweet Brown” video interview. With how quickly other individuals may move in on another person’s creativity, companies and individuals may be inclined to emulate Swift and lock up phrases associated with them and/or their advertising campaigns before anyone else can profit. However, before immediately filing “knee-jerk” applications for trademark protection, potential applicants should consider the trademark-ability of slogans.
A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods or services of one seller or provider from those of others, and to indicate the source of the goods/services. See 15 U.S.C. §1127. For a slogan to be protectable as a trademark, it must be either (1) inherently distinctive or (2) have acquired enough secondary meaning to be immediately associated with a particular brand of product or service. Secondary meaning is acquired when the meaning of a phrase transcends the literal meaning of its words and instead identifies a source. An example of a phrase that the USPTO has deemed as achieving secondary meaning is “Mayhem is everywhere,” which was registered in 2012 by Allstate Insurance Company to protect the slogan made popular by their “Mayhem” advertising campaign.
It is worth noting that none of Taylor Swift’s applications nor the “Ain’t Nobody Got Time for That” application have yet been accepted by the USPTO as registered marks. Therefore, their acceptability as a trademark has yet to be determined. However, for those potential applicants that have been inspired by Swift’s intellectual property maneuvers, consultation with a trademark attorney regarding the strength and secondary meaning of their slogans prior to application can be highly beneficial.
This article first appeared on the Louisiana Law Blog here