Taylor Swift’s trademark dispute with real-life Las Vegas showgirl Maren Wade entered a new phase on Wednesday: Swift’s lawyer argued in court that that Wade’s request for an immediate ban on the sale of album-related merchandise would trample on his client’s freedom of speech.
At the hearing in central Los Angeles, Swift’s lawyer said Wade’s call for an immediate halt to sales of candles, travel mugs, brushes and other merchandise bearing the album title contradicted “common sense.” Swift’s album “The Life of a Showgirl” does not violate Wade’s trademark “Confessions of a Showgirl” because it is “absolutely undisputed” that the album is an artistic work and therefore enjoys legal protection.
“This is the rare and special case of an album – a classic artistic work,” argued attorney J. Douglas Baldridge. “That’s why the First Amendment to the Constitution applies here. That’s why no injunction can be obtained.”
Swift’s Lawyer: Unrealistic
He argued that in order to succeed and obtain the “extraordinary relief” she seeks, Wade would have to prove that consumers who attend Wade’s live shows, listen to her podcast, or read her book think, “Oh, that’s Ms. Swift” – or, “That’s a Swift-sponsored event.”
“I don’t see how that could ever happen,” he said. “It’s simply not realistic that they can get away with it.”
Wade sued Swift in March for trademark infringement, requesting an emergency moratorium on merchandise sales that would last for the duration of the case. The judge responsible heard the arguments on the application for an interim injunction on Wednesday, but did not make an immediate ruling.
“Reverse confusion” as a core argument
Wade’s attorney, Jaymie Parkkinen, argued that his client owns a federally registered, incontestable trademark for “Confessions of a Showgirl” — and that the U.S. Patent and Trademark Office “rejected” Swift’s application to register her album title as a competing trademark because it was too similar and could cause market confusion.
“Since 2014, this brand has stood for a single person. A search for it led to a single person. Today refers [Wades] Brand no longer on [Wade]. When a consumer enters their exact registered trademark into Google, autocomplete fails [Swift] before,” Parkkinen told the court. “This is reverse confusion,” he continued. “[Wade] is the owner of the trademark, and the defendant’s conduct undermines it. Money can’t fix it.”
Parkkinen says Wade and Swift are closer than Baldridge suggests: “We have two solo artists. Both perform live on stage. Both produce recorded entertainment and are active on the same social media, streaming, television and online channels. Both embody the showgirl story and aesthetic,” he said. “Consumers confuse them.”
Wade’s path to the brand
Wade is an active stage performer who has expanded her 2014 Las Vegas Weekly column “Confessions of a Showgirl” into a live show, a touring production, a book, a podcast – and her brand. When Swift announced her album title, she was initially excited, but the album’s overwhelming success quickly overwhelmed her and silenced her.
“‘Confessions of a Showgirl’ is not just one trademark for Plaintiff. It is the only one she has,” says her court documents, obtained by ROLLING STONE. “[Wade] has built its professional identity under it over more than a decade, and it has neither a portfolio of alternative brands nor corporate financial backing nor a global marketing apparatus to compete in the battle for consumer attention. The defendants have all of this. This asymmetry is directly relevant to the balancing of interests – and it is in favor of the plaintiff.”
At Wednesday’s hearing, Swift’s attorney pointed out that Wade sensed an opportunity and took it when Swift named her album. He said she used Swift-related hashtags to drive traffic to her commercial website and urged people to follow her in her “showgirl era.”
“Eight months of silence”
“There is absolutely no doubt that this woman – whether out of enthusiasm or a desire for commercial gain – associated herself very closely with Ms. Swift for eight months while millions were poured into marketing this album. That cannot be undone,” Baldridge said. “It was eight months in which she raised no objections to an artistic work while she held on to it.”
Wade’s lawyer countered. He said his client spent 12 years building her own brand — writing a column, staging her own show, touring, publishing a book and winning an “incontestable federal registration” — only to see her brand “swallowed up in real time by a multibillion-dollar machine.” Swift, on the other hand, is an “experienced, repeat trademark owner” who knew that her attempt to trademark the album title had failed and who shelved her application rather than correcting it.
“The severity isn’t even close,” Parkkinen said. “They knew what they were doing and still went through with it.”
The judge said she plans to “immediately issue a written decision” on Wade’s request for a preliminary injunction.
