This summer, two popular musical acts, Lady A (formerly Lady Antebellum) and Taylor Swift, have engaged in behavior that has shown us the importance of trademark law. In particular, why it is imperative to conduct a trademark clearance search before using a mark.
Lady A (the band) v. Lady A (the solo artist)
Background
Amid the recent increase of racial awareness in the United States, the country group Lady Antebellum decided to change its name. That’s because the term “antebellum” refers to the period in the South before the Civil War period and romanticizes slavery. The band decided to change its name to Lady A.
However, Lady A, a solo artist based out of Seattle, has gone been using the name in association with her musical act for more than 20 years. After the band Lady A failed to reach a settlement with solo artist Lady A, the band sued for the right to use the name Lady A in association with entertainment services.
Common Law Trademark
While trademark registration is great because it can give you national rights, you don’t have to register a trademark to have trademark rights. That’s because most states have laws that create common law trademark rights if a party starts to use a mark in association with the sale of goods and services.
Solo Lady A has been using that name for years. Despite the fact she did not register a federal trademark, she most likely has common law trademark rights for use of the name. I’d be interested to see how this case is resolved.
Taylor Swift v. The Folklore
Background
In July 2020, international superstar Taylor Swift released her latest studio album entitled “Folklore”. To promote the album, she sold clothing that contained the label “The Folklore” in stylized text on the front. The label looked very similar to the logo of The Folklore, a clothing store owned by artist and entrepreneur Amira Rasool (full disclosure: I know Amira and have purchased items from her store).
Trademark Registration
Unlike solo Lady A, Amira had secured a federal trademark for THE FOLKLORE for use in association with on-line retail store services for the sale of clothing. That means her rights trump those of Taylor Swift to use THE FOLKLORE on clothing. As of the date of this blog post, Amira and Taylor Swift have come to a settlement.
Importance of a Trademark Clearance Search
Regarding the band Lady A, prior to the name change, I doubt the band conducted a trademark clearance search for the term LADY A prior to announcing their name change. Had they done so, they would have seen that solo Lady A used the name for some time. If rebranding was the issue, they could have chosen a completely different name.
And had Taylor Swift’s team conducted a trademark clearance search, she could have avoided this mishap. This just goes to show you that even popular and powerful celebrities may not understand trademark law.
For more information about trademark clearance searches, you can read this blog post or contact us.
