Recent news that pop sensation Taylor Swift has applied to trademark “catchphrases” from her “1989” album (such as “This Sick Beat,” “Nice to Meet You. Where You Been?” and “Party Like It’s 1989”) has appeared to open the floodgates in terms oftrademark questions. Can anyone trademark any phrase that pops into their minds, for use in the sale of certain products?
The answer is yes, as long as you follow a few basic guidelines, according to NYU Law School professor Christopher Sprigman, who spoke to Money magazine about this topic. First, the trademark cannot be “generic,” meaning it cannot include a commonly used name of the product that you’re trying to sell. He provided the example that seeking a trademark for the phrase “salt” to sell salt shakers probably wouldn’t work because “salt” is a generic word when applied to those particular goods.
Second, the trademark cannot be something descriptive, so you can’t trademark use of a descriptor like “salty” to sell Saltine-style crackers, Professor Sprigman says. However, it is worth noting that if the trademark is “arbitrary” or “fanciful,” meaning that it has no connection to the good or service associated with it, then it is okay. So, while you can’t register “salt” for salt shakers or “salty” for crackers, you could register either of them to sell computers, cars, or anything else that is not described by the terms.
Ms. Swift did not apply to trademark the phrase “Shake It Off” because that phrase is already trademarked by a diet company. Ms. Swift has applied to use “This Sick Beat” on Christmas stockings and a skin care lotions, among other items. Her phrases are not descriptive of either of these products and thus, the “descriptive” aspect of her trademark application should not be a barrier. Ms. Swift has also sought protection for other goods and services, such as “public appearances,” “clothing,” “ornaments,” and more under the phrase “This Sick Beat.”
Some experts believe Ms. Swift is seeking protection for her phrases because she is looking for ways to merchandise her “brand.” And, she needs a way to enforce her rights to earn money selling Christmas stockings with “This Sick Beat” emblazoned on them in case anyone else decides they want to sell a knock-off product.
If you have a word, phrase, logo, or design you wish to trademark, consulting with a lawyer specializing in intellectual property is a smart move. The attorney will investigate whether anyone else has already trademarked this phrase for the same or similar products and will guide you through the application process so that you can secure your rights.
For more information on trademark protection, contact the experienced IP lawyers at MYERS BERSTEIN LLP today.