First published on March 8, 2011.
Steve Baird generously linked back to this LIKELIHOOD OF CONFUSION® post writing about the trademark status of some singer’s signature at the superb, now-two-years old Duets Blog. His novel question:
Do you suppose TS fans have an expectation that the Taylor Swift signature trademark represents her actual, personal signature? If so, would their decision to purchase goods be affected if the signature was actually penned by another? Probably not, but if so, would that subject the trademark registration to cancellation on deceptiveness grounds? Or, on the other hand, do fans assume and expect the trademark signature to be part of the artist’s professional handling, more like they would view assistance from a make-up artist, hair stylist, and/or airbrushing expert?
Well, been there, done that! Remember this one? (It’s older than two). This issue was some guitar player’s signature:
“Branding,” “infringement,” “liabilty,” “fair use” — all very interesting concepts.
But they only apply to trademarks, Your Honor! How you got a trademark here?
Ah, well, what if the other side has actually registered a trademark in Jimi’s signature? Yep. Here are the two Jimi Hancox, side by side: plaintiff’s registered one on the left, defendant’s on the right:
Ah! Yeah, kind of close, but thatâ€™s not really the point. Thus, wrote the court (at page 13),
[E]ven if the distinctions [between the two specimens that] defendants identify were nontrivial, the nature of plaintiffs’ mark, as connoting the signature of a particular, now deceased, person, does not leave much room for a different version of the same person’s signature to be associated with another company. The underlying assumption of a signature is that it remains somewhat constant over time and that it is unique to the individual, similar to a fingerprint.
Well, that is assuming a lot about what a signature’s “underlying assumption” is, for I imagine that there was no testimony by the signature. But a trademark registration at least provides a presumption; in this case, one of secondary meaning. And, given the above, that gets you a presumption of a LIKELIHOOD OF CONFUSION.
Confused? Me too. And we’re not alone — I’m starting a petition! Sign right here.