Pleasant Grove-based Evermore Park filed a lawsuit against pop musician Taylor Swift on Tuesday claiming the artist’s December 2020 album “evermore” infringed on the park’s trademark and “resulted in actual confusion” online.
The lawsuit, filed in the U.S. District Court for the District of Utah, alleges that Swift or her agents “conducted a search on Google.com or other search engine for the term ‘Evermore’ and, as a consequence, had actual knowledge about Evermore.”
Jared Cherry, an attorney for the Pleasant Grove fantasy theme park, further claims in the lawsuit that Swift or her agents “visited www.evermore.com prior to December 10, 2020,” the day before the release of the album “evermore.”
“On information and belief, Evermore alleges that Defendants or their agents chose to adopt the EVERMORE Trademark despite their actual knowledge of Evermore’s prior use and registration of the EVERMORE Trademark,” the attorney wrote in the complaint.
Evermore Park, a fantasy theme park resembling an old European village that opened in September 2018 and was named one of the “World’s Coolest Places” by Time for Kids in 2019, has struggled with business throughout the COVID-19 pandemic.
“Evermore is not out of business, but 2020 (Covid) made for a very hard year,” CEO Ken Bretschneider wrote on Twitter on Jan. 17. “We do care despite the few that are saying otherwise. We had to deal with real financial issues and continue to put our heart and soul and everything we have into this dream. Hoping for a better 2021.”
In the lawsuit, Cherry wrote that Swift’s actions “have caused actual confusion, mistake, or deception regarding the source, sponsorship, and/or affiliations of (Swift’s) goods and services.”
“There is evidence of actual confusion, including (1) inquiries from guests at Evermore Park regarding the Evermore Album, (2) substantial fluctuations in Evermore’s web traffic on the day the Evermore Album was released, and (3) explicit associations by social media users between Taylor Swift and Evermore,” he wrote.
For example, one Twitter user tweeted: “I would like to take this beautiful #Taylorswift moment to point out the superb RPG theme park #Evermore,” according to court documents.
Additionally, on Dec. 10, the Utah Office of Tourism tweeted a picture of the Swift album and a map of Evermore Park.
“The first is #evermore, the new Taylor Swift album. The second is @EvermorePark, the immersive storytelling theme park in Pleasant Grove, Utah. Know the difference,” the tourism office wrote.
In response to a cease and desist letter sent to Swift on Dec. 18, an attorney for the pop star called the claims “baseless” and said “the Swift Parties have not infringed your client’s trademark, and it is inconceivable that there is any likelihood of confusion between your client’s theme park and related products and Ms. Swift’s music and related products.”
“Your letter points to ‘in park exclusive items’ including small dragon eggs, guild patches and a small dragon mountain and claims that items available on Ms. Swift’s website are similar. They are not,” J. Douglas Baldridge wrote in a Dec. 29 letter to Cherry, noting that “Ms. Swift’s website does not sell small dragon eggs, guild patches, or small dragon mounts.”
“Whether there is a likelihood of confusion between two marks can often be determined by asking the following question: would a consumer who sees products being offered under a new trademark believe they are associated with a senior trademark holder? Here, the answer is assuredly, no,” the attorney continued. “Simply put, our clients are using distinguishable marks, operate in separate industries, and are competing for different consumers. Given the foregoing, we do not believe that there is any likelihood of confusion between these marks, and you have not presented any evidence to the contrary.”
TAS Rights Management and Taylor Nation, which are both Tennessee-based limited liability companies, are also named as defendants in the lawsuit.