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Utah Theme Park Sues Taylor Swift Over Album Title After Exploiting It

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It really is kind of crazy just how often Taylor Swift shows up in Techdirt's pages. One reason for this is that she seems to seesaw in the news between being the victim of and perpetrator of ridiculous intellectual property disputes. The whole "Shake It Off" thing was really silly, for instance, but so were Swift's attacks on fans and journalists over spurious trademark concerns. And, so, she doesn't neatly fit as a hero or villain. Instead, every time her name pops up in intellectual property news, the immediate question becomes, "Which side of it is she on this time?"Today, that answer is as the victim. See, Swift recently released her album, Evermore, and applied for trademarks for the term, too. Meanwhile, the owner of a Utah theme park that goes by the same name has decided to file a trademark lawsuit against her for using the term, claiming that the album and associated merchandise are creating real confusion in the marketplace.

Federal court documents filed in the Utah District Court show Ken Bretschneider, the chief executive officer of Evermore Park in Pleasant Grove, Utah, has filed a lawsuit against Taylor Swift over her latest album, ‘Evermore.’Documents filed on Tuesday show 12 exhibits of evidence supporting Bretschneider’s case, including Google search results for Evermore, items of clothing with branding, and two different letters from Swift’s counsel.
The suit makes some of the claims you would expect. And then a couple you wouldn't. It states that the company has poured millions into the branding of Evermore Park, including the purchase of domain names, advertising, etc. $37 million dollars, to be precise. Point of note: Bretschneider himself indicates that the park has had 140k guests since its genesis in 2018. That's roughly $265 in just branding costs per guest...ever. None of that takes into account operational costs for the park, HR, legal, etc. Unless the park charges attendees hundreds of dollars per entry, it's tough to see how this math makes any sense, but I digress.Because the filing goes on to note that the park commissioned two original songs that it sells on Apple Music under the Evermore trademark it has and that this somehow means it's in the same general marketplace as Taylor Swift. Also, the filing complains that before Swift released her album, the park consisted of the majority of Google search results for "Evermore". Now, not so much.Is any of this trademark infringement? Of course not! Swift's response to the suit is both good on the merits and quite thorough. It points out that the claims are baseless due to the park and Swift not being remotely in the same marketplace generally, that Swift's use of "Evermore" is actually "Taylor Swift Evermore Album" which is different as a mark, and that the claims of confusion are nonsense... but with a twist!
Second, you have not identified any evidence of actual confusion, likely because there is none. You make the conclusory statement that “Evermore’s web traffic and digital marketing have been negatively impacted since your adoption of the Evermore trademark” and claim that “[d]uring the week of December 6-12, 2020, [your client’s] website traffic experienced a dramatic departure from typical levels.” As a preliminary matter, a change in website traffic does not equate to trademark confusion. Furthermore, even if it did, any dramatic departure from typical levels that occurred from December 6 – December 9 are in no way attributable to the Swift Parties because Ms. Swift’s album name was not announced until December 10. Your attempt to fully impute an alleged decline in email traffic to Ms. Swift’s new album is similarly misguided given the reality of the industry-wide impacts COVID-19 has had on theme parks,4 particularly in winter months as temperatures decline and as case counts are soaring across the country. Lastly, and perhaps most importantly, your client’s social media posts belie this claim as they have intentionally traded off and taken advantage of this alleged attention in a transparent attempt to try to create an association between your client and ours.
Yeah, that's right, the very confusion the park is complaining of is confusion the park itself attempted to foster for publicity.Bottom line: this is a lawsuit almost certain to go nowhere fast. Claims of confusion are silly, the markets aren't remotely the same, and the marks themselves are different. So, Swift is the victim in this chapter. We'll have to see where she lands next time.

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posted at: 12:00am on 05-Feb-2021
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We're Living Our Lives On The Internet, And We Can't Be Free If It Isn't.

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Last year, as a consequence of the COVID-19 pandemic, the offline world suddenly became a lot more online. All around the world, people have struggled to adapt. Worst off are those who can't take internet access for granted. The Federal Communications Commission will spend many resources on the domestic side of this challenge, further investing in internet connectivity reach, quality, and affordability. But the international side, known as internet freedom, is a harder question.Internet freedom may generate fewer headlines than a decade ago, when it was a signature issue of then-Secretary of State Hillary Clinton. But internet freedom is just as necessary now as it was then. For example, in China, crucial information about the spread of COVID-19 was often unavailable, and citizens resorted to using technical workarounds to upload and view videos about the pandemic on government-blocked YouTube. And in Iran, those who follow the Baháí faith are denied access to education, and depend on internet freedom technologies to give themselves the most basic opportunities. There are many more such examples in internet repressive countries around the world.Fortunately, bipartisan support for internet freedom in Congress has kept funding levels robust over the past four years, and consistent leadership from within the Department of State and other funders has kept this work strong. But as with so many other areas of policy, the Trump administration not only did not add value, but actively made things worse by engaging in a harmful turf war. Partisan leadership at the U.S. Agency for Global Media (USAGM) disrupted the funding and operations of its independent grantee Open Technology Fund (OTF) when OTF chose to pursue good policy over bad politics, an approach that - to give one example - led the organization to support early development of the now-popular Signal secure messaging service.The first internet freedom action by the Biden administration should be to reverse course and install leadership at USAGM that can work constructively with OTF, the State Department, and other funders to support scalable open source technology and community internet freedom solutions. Congress did its part through the defense funding bill passed on New Year's Day (in the first-ever override of a veto by Trump), allocating substantial resources and setting the tone for open source to be at the heart of internet freedom efforts. And President Biden has cleared the way by firing Michael Pack, head of USAGM, on inauguration day. Now it's President Biden's move again, to make a better appointment at USAGM than his predecessor did.Internet freedom is a human rights issue, but it isn't just a human rights issue. As 2020 demonstrated so clearly, the internet is connective tissue for massive parts of our economy and our society. Thus, China's Great Firewall does far more than just repress free expression: it also implements an economic protectionist agenda, and is a powerful tool for fostering nationalist support at home. To counter these challenges, the Biden administration should adopt a positive agenda of supporting the global free flow of data and information, to prove in practice the superiority of digital globalization over repression and protectionism. That means growing the internet freedom agenda further, well above and beyond the State Department's Bureau of Democracy, Human Rights, and Labor where it was incubated, to embrace the economic and political divisions at State as well as the Department of Commerce.Perhaps more than any other federal agency, the State Department is in need of a hard reboot. Under Trump, the United States reverted to being a unilateral bully, bringing back the Team America: World Police spirit of the George W. Bush administration, forcing out centuries of institutional knowledge and expertise. Unsurprisingly, that strategy has failed. China in particular possesses many advantages on the global stage, and will be in an even better position in many respects after 2020. The United States faces a drastically weakened foreign policy position, and cannot turn any tides alone. In the context of internet freedom, the American agenda should include expanding efforts with the Freedom Online Coalition and other diplomatic avenues where we can work arm-in-arm with other countries who, frankly, possess more goodwill on the global stage than the U.S. does right now.Finally, leadership starts at home. For at least the past decade, the U.S. approach to digital government surveillance has been outright hostile, highlighted by frequent battles in an ill-conceived war on encryption. President Biden has an opportunity to show strong support for privacy and security by shaping the interagency and National Security Council to better balance law enforcement with civil rights and internet freedom champions. The newly created role of a White House coordinator for democracy and human rights is a good start. It's past time the U.S. stops pursuing backdoors that would put everyday internet users at great risk.Where the internet isn't open, the people aren't free. Although the challenges facing the Biden administration in putting the United States back together will be many and broad-ranging, restoring American leadership on internet freedom should be a top priority.Adam Fisk is the founder and president of Brave New Software, a leading 501(c)(3) developer of internet freedom technologies including Lantern and a recipient of U.S. government internet freedom support. Chris Riley is a strategic advisor to Brave New Software and a former member of the internet freedom program team at the State Department.

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posted at: 12:00am on 05-Feb-2021
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