A former showgirl has sued Taylor Swift as well as her management company and music label for trademark infringement, claiming that Swift’s use of “Life of a Showgirl” is too similar to her “Confessions of a Showgirl” trademark. Maren Flagg, professionally known as Maren Wade, began writing a column in Las Vegas Weekly in 2014, entitled “Confessions of a Showgirl.” This column eventually became a live show and then a touring production across the United States. The United States Patent and Trademark Office (USPTO) registered Confessions of a Showgirl to Wade in 2015.
What is a Trademark?
A trademark is a recognizable word, phrase, symbol, design, or combination thereof that identifies and distinguishes the source of goods or services from competitors. It protects brand identity, such as slogans and logos, allowing owners to prevent others from using similar marks in commerce.
When the USPTO reviews the application for a trademark they will look for confusingly similar marks that have already been registered. To do this they utilize what courts have termed the du Pont factors, originating from the 1975 In re E. I. du Pont de Nemours & Co. case.
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services.
Similarities Between the Marks
The first du Pont factor to consider is the similarities between the marks. Although marks are compared in their entireties, one feature of a mark may be more significant or dominant in creating a commercial impression. Greater weight is often given to this dominant feature when determining whether marks are confusingly similar. In reviewing Swift’s trademark application the USPTO found that the Confessions of a Showgirl and Life of a Showgirl marks in this case are confusingly similar because “they look alike, sound alike, and convey a similar overall commercial impression.”
“The marks are identical in part since they both consist of the terms OF A SHOWGIRL, so the marks are similar in appearance, and similar in sound somewhat similar. Similarity in sound alone may be sufficient to support a finding that the compared marks are confusingly similar.”
The USPTO added that “Confessions” and “The Life” is not enough to differentiate between the two, they both result in the same commercial impression.
Related goods and services
Even if two trademarks are confusingly similar, determining whether there is a likelihood of confusion between them also depends on whether the goods or services associated with each trademark are related. This is how identical trademarks with different owners can be registered for Dove soap and Dove ice cream bars, or Delta faucets and Delta air transportation services.
When registering a trademark the applicant must state what “class” or classes they wish to register the trademark in. The USPTO does not just allow an applicant to register their trademark for anything and everything. In this case, Wade trademarked “Confessions of a Showgirl” in two classes:
- IC 016: Printed columns in the field of entertainment, education, culture, and sports
- IC 041: Entertainment and educational services in the nature of on-line publications, namely, blogs and non-downloadable e-zines in the field of entertainment, education, culture, and sports; Entertainment in the nature of live stage performances in the nature of theatrical productions in the field of music, singing, dancing, comedy and drama; Entertainment services in the nature of ongoing television programs and continuing movie series featuring drama and comedy.
While Swift applied for a trademark for “Life of Showgirl” in 14 categories, including categories 016 and 041. Meaning that both marks are used in connection with general entertainment services that involve musical and/or theater performances.
According to the du Pont factors where the goods and/or services of an applicant and registrant are virtually identical, or closely related, the degree of similarity between the marks required to support a finding that confusion is likely declines. This has led the USPTO to find that in the eyes of the purchasing public, the trademarks will be confusingly similar, since it can appear that the proposed mark identifies a line of musical entertainment goods services in Wade’s already existing line of musical entertainment services.
Reverse Confusion
In the complaint against Swift, Wade calls this case “textbook reverse confusion,” so what is reverse confusion? Typically when infringing on a trademark, a smaller, lesser known party attempts to profit off a more well known brand’s goodwill. Reverse confusion is still trademark infringement, but instead of the small business profiting off the big business, the big business comes in and dominates the market, blocking the smaller business from effectively using its trademark.
Oftentimes, consumers start to believe the smaller company’s product is the knockoff, even though they owned the trademark first. Wade says this is what has happened to her: she has “found herself having to navigate the wave of consumer attention Defendants’ program had generated and attempting to maintain her presence in a conversation and a marketplace that Defendants had overtaken.” And that Swift’s usage of the Life of a Showgirl trademark has impaired her “ability to control the identity and goodwill associated with her brand.”
What Happens Next?
Wade’s complaint states that “[t]he harm to Plaintiff’s goodwill is not fully compensable through monetary damages,and she is seeking “an accounting and disgorgement of all profits earned by Defendants attributable to their use of THE LIFE OF A SHOWGIRL.”
Meanwhile Swift has asked the USPTO to suspend her trademark request while she waits to hear if another SHOWGIRL trademark (Serial No. 98905117), for cosmetics and cleaning products, is registered or abandoned.
What Can Small Businesses Do to Protect Themselves?
The first step is to file for a trademark with the USPTO to protect your brand and make sure that your filing remains active. Your business name, logo, slogan, and product identity are valuable assets. Without proper trademark protection, competitors may use similar branding — creating confusion, reputational harm, and financial loss.
At EPGD Business Law, our Trademark attorneys in Miami represent entrepreneurs, companies, creatives, and franchisors in trademark registration, brand protection, and trademark disputes. We help clients secure and enforce their intellectual property rights both domestically and internationally.
