Not only did Swift use “Evermore” to promote her own merchandise, the park claims that since Swift released her album evermore it created “actual confusion” around its own trademark. Visitors asked staff whether the album “was the result of a collaboration between Evermore and Taylor Swift or some other type of relationship,” the suit states. And on the day of the evermore album release (Dec. 10), the park says traffic on its website spiked 330.4% in comparison to traffic on the previous day.
While one may think that’s a good thing for the park, the suit addresses that too. When Swift’s counsel responded to a cease-and-desist letter sent by the park on Dec. 29, the suit says they claimed, “If anything, your client’s website traffic has actually increased as a result of the release of Ms. Swift’s recent album which, in turn could only serve to enhance your client’s mark.”
To this idea that the park is “receiving a benefit from Defendant’s promotion of its trademark,” the park says Swift’s team shows a “misunderstanding of trademark law.” To back this, the lawsuit cites Audi v. D’Amato (2004), which states, “The Court finds that the loss sustained by a trademark holder from the unauthorized use of its trademarks is the loss of the trademark holder’s ability to control its reputation. In the context of trademark litigation, grounds for irreparable harm include loss of control of reputation, loss of trade, and loss of goodwill, regardless of whether the infringer is putting the mark to a good or favorable use.”
Since the theme park’s trademark specifically covers “live visual and audio performances by an actor,” the lawsuit is sure to identify Swift as an “actor,” citing her acting in the “willow” video and other credits in film and TV.
The lawsuit also cites two original music scores that the park commissioned under the “Evermore” trademark and sells and streams online, claiming Swift’s album has made those releases harder to find. And it points to Swift’s “willow” music video, where she emerges from a hole in a tree, saying it mimics the art from those albums the park released.
“Despite her publicly stated concerns for small and struggling artists facing larger and better-funded opponents,” the lawsuit states, “Ms. Swift now seeks to bury the previously released Evermore albums created by Evermore and misappropriate the EVERMORE Trademark with no compensation to Evermore because the company is facing ‘financial difficulties due to the COVID-19 pandemic’ and cannot afford to engage in protracted litigation.”
Swift’s team responded to the suit, calling it “frivolous” in a statement to Billboard. It cited a Utah Business report stating park founder and CEO Ken Bretschneider has had at least five lawsuits filed against him and the Evermore group by major construction companies, claiming they are owed between $28,000 and $400,000 in construction, mechanic and landscaping fees. Smaller subcontractors who did work on the park have also filed more than 20 construction liens on the Evermore property, according to the story.
“The true intent of this lawsuit should be obvious,” said a Swift spokesperson.
The lawsuit is seeking to prevent Swift’s further use of the “Evermore” trademark and statutory damages of $2 million per “counterfeit mark per type of goods or services sold,” or a portion of revenues derived from use of the trademark plus costs and fees.