Taylor Swift owns “This sick beat.” Kylie Jenner is using the name of her infant’s birthday celebration. Tim Tebow has his prayer pose copyrighted.
Hailey Baldwin, who is now known by her married name Hailey Bieber, applied for a trademark of “Hailey Bieber” with the US Patent and Trademark Office. She also filed to protect “Bieber Beauty”, indicating she may be planning a beauty/cosmetics line in future.
Celebrities often trademark their own name, the names of their children, famous sayings and songs they wrote as well as Tim Tebow’s signature prayer pose.
When celebrities seek trademarks for trivial things, such as Taylor Swift with “Party Like It’s 1989” to be used on items like nail art and tree skirts, it causes a stir. Despite this show of vanity though, there is actually solid justification in protecting the phrase from misuse when put onto household objects.
In the modern world of Instagram, reality TV, and an uncertain music industry, celebrities must act as businessmen/women. While it’s understandable to want exclusive use of phrases like “This Sick Beat”, can Swift do that? Would celebs trademark every English phrase for themselves leaving others with nothing?
How does it function for everyone else?
Celebrities have trademarked their names for years, yet the emergence of personal branding has made it more intricate.
David Clark, a commercial litigation and intellectual property lawyer from Houston, clarified that celebrities are not “getting trademarks,” but rather attempting to acquire trademark registrations; an important distinction.
Taylor Swift’s “This Sick Beat” became a trademark as soon as it was used and associated with her product. He explained that trademarks are formed by words, logos, names or designs when they become identified in the public eye.
A trademark registration through the USPTO or at a state level can be secured if it is actively in use. This gives an advantage with any legal conflicts and also indicates success.
Clark notes that when publicity and likeness rights became law, celebrities began to trademark their names. Madonna was one of the first pop stars to do this in the 1980s; a significant case occurred two decades later between Elvis Presley’s estate and The Velvet Elvis (now known as The Velvet Melvin) bar in Houston.
Last December, William McGeveran described the concept of “selfmarks” in an article for Houston Law Review. Celebrities now register trademarks to monetise their fame without selling products; this gives them more control over how their name is used and protects against others exploiting it.
He informed me via email that famous people desire to have influence over their persona in the business world. Previously, one had to market an item such as clothing or perfume for a trademark; yet now it is simpler to obtain one for “endorsement services,” which is basically branding oneself. Therefore, Kim Kardashian has trademarks concerning her endorsement services and promotional appearances- stopping anyone else from attending parties/holding bags of… on her behalf.
People can make money off the trademark “Kim Kardashian” by selling tummy tea.
It can be difficult to register married names unless your in-laws are litigious.
In April 2017, the Kardashians set another precedent in celebrity trademarks. Kourtney, Kim and Khloe formed corporations 2Die4Kourt, Kimsaprincess Inc. & Khloemoney Inc., denying Blac Chyna - then fiancée to their brother Rob Kardashian - from registering her desired married name Angela Kardashian as a trademark.
Clark believes that the cases of Hailey Baldwin and Blac Chyna are incomparable. He explains this by saying “Kim Kardashian’s fame has made ‘Kardashian’ a valuable name brand and trademark, which likely caused confusion for those consuming public when they heard ‘Blac Chyna’. Consequently, she was denied registration.”
She was not prohibited from publicly using her married name; however, she could not utilise the Kardashian surname to promote services that competed with theirs. “Rebranding herself as ‘Angela Renee Kardashian’ for marketing and entertainment purposes would lead to confusion due these factors.”
Clark does not think Bieber is as renowned or unique a name like Kardashian and Hailey likely won’t clash with her spouse.
Celebrities cannot legally register trademarks for their children’s names without the intention to make money from it.
The Kardashians can serve as a helpful example of how to get trademark protection for children’s names; Kim holds trademarks for her three kids’ monikers (“North West,” “Saint West” and “Chicago West”) while Kylie Jenner recently applied to register both “Stormi Webster” and the combination phrase, “Stormiworld” (derived from daughter Stormi’s name alongside Travis Scott’s album Astroworld).
Jenner needing to declare an “intent to use” the trademark in trade is essential. Although Stormi’s too young for a clothing or cosmetics line, Jenner can’t keep her mark without promising it will be done eventually.
Beyonce and Jay-Z have filed for trademarks on their twins’ names, “Rumi Carter” and “Sir Carter”, via BGK Trademark Holdings. This is a temporary measure as they must regularly ask to extend the period before using them; otherwise, it will be denied by the trademark office.
A wedding planning company called Blue Ivy opposed their trademark application and Jay-Z’s comments in a 2013 Vanity Fair interview, saying they only applied for it to prevent someone else from profiting off of “Blue Ivy Carter.” As no action has been taken since then, the effort was unsuccessful.
Catchphrases like “This Sick Beat” isn’t trademarked, but “That’s hot” is.
Catchphrases are especially amusing in trademark cases, as having one is inherently foolish. Some have been successful though: Marshawn Lynch holds the rights to “I’m just here so I won’t get fined;” Paris Hilton sued Hallmark for using her phrase “That’s hot” on a card.
Rachel Zoe and Ryan Lochte were unsuccessful in owning the trademarks for “I die” and “jeah”, respectively.
Taylor Swift has applied for multiple trademarks, with TAS Rights Management being one of them. Despite the popular belief that she’s had success in doing so, her trademark registration for “The 1989 World Tour” was not registered until after said tour finished in 2017; this process started back in 2015.
She spent money to submit requests for trademarks like “Swiftmas” then dropped them without filing a statement of use. The press made fun of her applications for marks, such as “This Sick Beat,” “Party Like It’s 1989,” and “cause we never go out of style,” which were also given up on with no resistance.
Swift is often accused of suing to protect her trademarks, however she has not been concerned in trying to acquire the rights for “Blank Space,” her cats’ names, “the old Taylor can’t come to phone right now” and all of her album titles. Even with regards to “Reputation” - released November 2017 - a statement was only submitted last week.
Prof. Madhavi Sunder of Georgetown University Law Center, an expert in IP law, notes that Taylor Swift can’t be granted a federal TM if it cannot be proven she already has one - contrary to the wishful thinking behind ‘Shake It Off’ and ‘This Sick Beat’.
Swift has relaxed in her efforts to obtain trademarks for phrases from the album as she needed to demonstrate that they were used on products sold.
Have celebrities’ trademarking antics gone crazy?
Although trademark registration can be inexpensive, many celebrities choose not to pursue it since those most likely to infringe are typically their own fans.
Sunder explains that celebrities are typically reluctant to sue their fans, as it can lead to a swift change from love to hatred. Despite this, some think the benefits of full control over merchandise outweighs these risks.
Celebrities would gain little from registering anything more than their names, albums and logos. They may be tempted to register every sentence they say but this is unlawful; it won’t happen.
Beebe and Fromer of the NYU Law School queried in the Harvard Law Review 2018 whether trademarks were running out. The USPTO has 6.7 million trademark applications since 1985, they stated, making it crowded, noisy and complex.
The government is cognizant of the issue. In 2012, a two-year trial was launched by PTO which randomly audited trademarks to check if they were being used correctly. The office reviewed 500 registrations and found half not in compliance with regulations; 34% had their goods/services altered while 16% have been cancelled altogether.
Beebe and Fromer suggest that the PTO’s program be widened, beginning with a higher requirement for proof of acquired distinctiveness in descriptive marks.
Swift’s and Jenner’s decisions may elicit heated debate, but trademark law is good at ensuring justice.
Sunder affirms that trademark law prohibits hoarding of trademarks, “You cannot accumulate a stockpile of terms from the English language for potential use in future.”