Taylor Swift’s trademark war with real-life Las Vegas “showgirl” Maren Wade kicked into high gear Wednesday, with the superstar’s lawyer arguing in court that Wade’s request for an immediate ban on album-related merch sales would trample Swift’s right to free speech.
At the hearing in downtown Los Angeles, Swift’s lawyer said Wade’s request for an immediate ban on sales of candles, tumblers, brushes, and other merchandise bearing the album title defied “common sense.” He said Swift’s album, The Life of a Showgirl, did not infringe on Wade’s “Confessions of a Showgirl” trademark because it was “absolutely undisputed” that the album is an expressive work entitled to legal protections.
“This is the rare and special circumstance of an album — a classic expressive work,” the lawyer, J. Douglas Baldridge, argued. “That’s why the First Amendment applies here. That’s why you can’t get a preliminary injunction.”
He said that for Wade to prevail and obtain “the extraordinary remedy she seeks,” she would have to show that consumers who see Wade’s live shows, listen to her podcast, or read her book would have to think to themselves, “Oh, that’s Ms. Swift,” or “that’s a Swift-sponsored activity.”
“I don’t see how that could ever happen,” he said. “For them to prevail, it’s not realistic.”
Wade sued Swift for trademark infringement in March and asked for the emergency moratorium on merchandise sales while the case plays out. The judge overseeing the case heard the argument on the injunction request Wednesday but did not issue an immediate ruling.
Wade’s lawyer, 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 “refused” Swift’s application to register her album title as a competing trademark because it was too similar and could cause market confusion.
“Since 2014, that mark has identified one person. A search for it returned one person. Today, [Wade’s] mark no longer points to [Wade.] When a consumer types her exact registered mark into Google, autocomplete suggests [Swift],” Parkkinen told the court. “That’s reverse confusion,” he continued. “[Wade] owns the mark, and defendant’s conduct is eroding it. Money cannot fix that.”
According to Parkkinen, Wade and Swift are more closely aligned than Baldridge suggested. “We have solo female performers. Both perform live music onstage. Both produce recorded entertainment and operate in the same social media, streaming, television, and online [channels]. Both embody the showgirl story and aesthetic,” he said. “Consumers are getting them confused.”
Wade is a working performer who parlayed her 2014 “Confessions of a Showgirl” column in Las Vegas Weekly into a live show, a touring production, a book, a podcast – and her trademark. She says when Swift announced her album name, she was excited at first, but the album’s overwhelming success quickly overpowered and drowned her out.
“’Confessions of a Showgirl’ is not one mark among many for plaintiff. It is the only one she has,” her court filings, obtained by Rolling Stone, say. “[Wade] has built her professional identity under it for more than a decade, and she has no portfolio of alternative brands, no corporate backing, and no global marketing operation to compete for consumer attention. Defendants have all of these. That asymmetry is directly relevant to the equities, and it tips in plaintiff’s favor.”
At the Wednesday hearing, Swift’s lawyer pointed out that Wade saw an opportunity when Swift named her album — and seized it. He said she used hashtags related to Swift to direct traffic to her commercial website and asked people to follow her in her “Showgirl era.”
“There is absolutely no doubt that this woman, because of exuberance or trying to realize commercial gain, was very much affiliating herself with Ms. Swift for eight months while millions was spent to get this album out there, and it can’t be undone,” Baldridge said. “It was eight months of not objecting to an expressive work while she glommed onto it.”
But Wade’s lawyer pushed back. 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 trademark “absorbed in real time into a multi-billion dollar commercial machine.” He said Swift, on the other hand, was a “sophisticated repeat trademark holder” who knew her attempt to get a trademark for her album didn’t succeed and who suspended her application rather than try to cure it.
“The hardship is not even close,” Parkkinen said. “They knew what they were doing and they proceeded anyway.”
The judge said she planned to “issue a written ruling shortly” on Wade’s request for the injunction.
