Photo Credits: (unsplash.com)

Meena Alnajar is anÌęIPilogueÌę°Â°ùŸ±łÙ±đ°ù, IP Innovation Clinic Fellow,Ìęand a 2L JD Candidate atÌęOsgoodeÌęHall Law School.Ìę

Ìę

Taylor Swift broke records in 2020, releasing two albums in six months. Starting with Folklore, the strayed from her signature pop country style towards a more indie, contemporary folk style. Her second album Evermore boasts similar vibes but was also accompanied by a lawsuit filed by . Evermore Park, a Utah-based fantasy theme park, claimed that Swift infringed on their ‘Evermore’ trademark, which the park had registered since 2015. The park was seeking nearly $2 million in damages. After a month of silence, Taylor Swift’s team launched an unrelated suit against Evermore Park for copyright infringements. A volunteer at Evermore Park informed Swift’s team that park employees performed several of her songs in 2019. On March 24, 2021, it was announced that . However, the question still stands: Who would succeed in these claims—the struggling park holding a registered trademark, or the multi-millionaire artist claiming copyright infringement? Or both?

Trademark Infringement

perceived Evermore Park’s trademark infringement claim as opportunistic as the park and was struggling due to pandemic shutdowns. Despite these possible motives, it is worth investigating if Swift actually infringed on Evermore Park’s registered trademark.

According to the United States Patent and Trademark Office, a plaintiff with a must prove that they own a valid mark, that they have priority to the mark, and that the defendant’s mark is likely to cause confusion for consumers about the goods or services offered under the parties’ marks. Evermore Park fulfilled the requirement of owning a valid trademark, as it has owned the ‘Evermore’ trademark since 2015. The issue is whether there would be confusion between the theme park and Taylor Swift’s album. Courts consider to determine if there is a likelihood of confusion. The primary concern is if goods or services are similar enough or sufficiently related that consumers would likely mistake them as coming from the same source. In this case, Swift’s album appears to be little similarity with the fantasy theme park, and so Evermore Park likely would not have been able to establish a likelihood of confusion to support their trademark infringement claim.

Evermore Park further alleged that Swift’s album damaged the park’s reputation as the album became the for ‘Evermore’, driving the park off the first page of search results. Evermore Park might have been able to claim trademark , which occurs when the unauthorized use of a trademark will likely weaken or harm the mark’s distinctive quality. Swift’s use of ‘Evermore’ can be argued to have diminished the strength of their trademark by blurring the mark’s distinctiveness. Swift’s album reached on the Billboard 200, strengthening the association between the word ‘Evermore’ and her album, and diminishing the word’s association with Evermore Park. However, in , the court ruled that search engines such as Yahoo! and Google are immune to state law intellectual property claims in the United States under the Communications Decency Act. That is, courts have historically dismissed trademark infringement claims which argue trademark dilution on the basis of changed search engine results when searching for the mark. Even with the suits dropped, Evermore Park’s allegations of trademark dilution would likely be dismissed.Ìę

Copyright Issues

Twenty days after Evermore Park filed their claim, Swift’s company TAS Rights Management , claiming that park performers were performing Taylor Swift’s songs without a license. The performing rights organization that any unlicensed performances constitute infringement, and yet Evermore Park continued hosting these performances.

In America, occurs when a person uses a protected work, through methods of performance, distribution, and/or posting, without the owner’s permission. The park performed these songs without a license and were warned of the infringement. These factors make it likely that Taylor Swift had a strong copyright infringement claim against the park. At the very least, Swift’s copyright claim was persuasive enough to encourage Evermore Park to drop their lawsuit.Ìę

Lessons from Swift’s Lawsuits

When filing for trademark infringement, one should be sure that the average consumer would be confused between the two products or services and that the trademark’s distinctiveness was negatively affected. Swift’s record-breaking indie alternative album undoubtedly contrasts a fantasy theme park in Salt Lake City, Utah. The caselaw would likely not support Evermore Park’s dilution claim, as the court has previously held that changes in search engine results are not a strong enough argument for finding trademark dilution (; ). Whether it was the tangible threat of Swift’s copyright claims or the apparent flaws in Evermore Park’s trademark dilution claim, Evermore Park and TAS Rights Management hurriedly . Swift’s album title will remain, now and likely forever, Evermore.

The post Taylor Swift: Back-to-Back Albums, Back-to-Back Lawsuits appeared first on IPOsgoode.

(Sun) Salutations: Yoga from Which People, Again?

Though litigation around Ìęseems to have settled into Savasana (“corpse pose”) for the moment, certain legal issues it raised remain live as a Vajrasana-struck wire. Austen's tart (and somewhat doctored) observation aside, the notion of copyrighting a practice as historically and culturally steeped as yoga provides a timely platform from which to explore the intersection of intellectual property law and traditional knowledge, an issue particularly relevant to Canadian IP lawyers in an Aboriginal rights context.

In Bikram’s Yoga College of India v Evolation, lawyers in California sparred over doctrinal reasons to grant or withhold copyright, necessarily assuming a starting point that ignored the larger backdrop of another battle occurring in the Ìę yoga community, fought under the Hindu American Foundation's (HAF) banner of “”. Rather than highlighting distinctions between utilitarian and non-utilitarian works, form and expression of a system, or choreography, sports, and exercise, Take Back Yoga's entreaty for yoga practitioners to recognize its roots in Hinduism raised an arguably even more fundamental question: on what basis was a spiritual practice rooted in thousands of years of Indian culture and history being subjected to an legal ownership framework to begin with?

Just as some questioned Choudhury's right to copyright yoga, one might question American yoga practitioners' right to unilaterally that yoga “is a gift to all mankind, and thus beyond claims of ownership and copyright”. The and Ìę to the Take Back Yoga campaign are outside the scope of this article, but the storm among the calm brought to the forefront larger issues of , including , assisted by the territorial nature of intellectual property laws. The cases of , , and all illustrate this phenomenon. While it so happens that the Indian government agrees with keeping yoga and other cultural heirlooms “”, so to speak—hence the and Ìę to assist Ìę—this is far from a stance. Which brings us to Aboriginal traditional knowledge and cultural property, and its relationship with Canadian intellectual property law.

An IPR by Any Other Name: Aboriginal Cultural Heritage and Traditional Knowledge

As no amount of textual yoga would fit this topic adequately into a single post, the following will be limited to highlighting specific issues and potential solutions in applying intellectual property law to the protection and preservation of and in Canada. Many of the concepts presented may apply in other cultural contexts, as well.

I. Knowledge is Power...and Property

First, traditional knowledge, according to a citing (full disclosure: a professor at the University of Victoria), includes “folklore, traditional knowledge, innovations and practices; music, songs, dance for entertainment or education; graphics, designs, crafts, textiles, paintings and three dimensional arts; signs and symbols.” What is critical, however, is “the integration of these features into a cultural system”. Appropriation is not just unauthorized taking, but taking in part through the , as implied in HAF's complaint regarding yoga.

While conventional intellectual property law mechanisms may provide protection to some extent, they often fall short where practical realities clash, or where foundational rationales underlying such laws fail to align with those of Aboriginal perspectives towards what Canadian law considers property (whether intellectual, cultural, tangible, or intangible).

II. Not Seeing IP to IP

of such incommensurability as indicated above include: Canadian IP law tends to focus on individual authorship or ownership as opposed to communal or collective ownership. IP rights such as copyright, patent, and industrial design have set limitation periods, while family crests under certain Aboriginal laws or customs, for example, would necessitate perpetual copyright or trademark, at the risk of inducing severe offence and humiliation for some. There would likely require a significantly higher emphasis on strict moral rights than Canadian jurisprudence has shown. Furthermore, it would be difficult to look back in time far enough to confirm criteria such as originality (copyright), use (trademark), or prior work (patent) within hundreds of years of history, not to mention the inapplicability of premature disclosure to communal patent claims. Oral traditions would pose a challenge to the fixation requirement in copyright.

There are two overarching issues in addition to the above. The first is the fact that Canadian intellectual property law is based on an innovation-driven commercial bargain at heart, whereas much traditional knowledge and cultural property is often inherently non-commercial and not necessarily primarily innovation- or “progress of science and useful arts”-driven, involving completely different purposes and having emerged within vastly different contexts. The second is potential conflict of law matters between Canadian law and Aboriginal self-government, where the treatment of and laws surrounding cultural property and traditional knowledge is concerned. speaking, provide even less protection than domestic laws, with additional difficulties in trans-border enforcement: see for examples from Cuba, the Maori in New Zealand, and the Nisga'a in British Columbia; and for a case study in repatriation of a Nuxalk Nation mask.

III. Progress of Sui Generis and Useful Laws

The legal field has put forward a number of potential or partial solutions to some of the above issues. The , for instance, provides a comprehensive overview of cultural property protection strategies available in copyright, trademark, and patent law, as well as their limitations. Two other possibilities stand out, however, and would be worth further pursuits: sui generis legislation and legal pluralism.

Sui generis legislation recognizes the unique nature of traditional knowledge and cultural property, relative to conventional intellectual property for which Canadian IP law was made. For examples, WIPO has compiled a on traditional knowledge from around the world. Interesting theories supporting sui generis approaches to traditional knowledge are (1) the idea that terminology for an oxymoronic initiative that sterilizes rather than preserves and (2) the notion that the intangibility and fluidity of culture requires approaching traditional knowledge as an , with ecologically minded protection strategies. One remarkable example of a sui generis model in action is the collaborative in Fiji.

Legal pluralism may overlap with both sui generis laws and Aboriginal self-government, in the sense of opening up normative Canadian intellectual property law to accommodate forms of law that are more suitable to serving the needs of cultures that wish to protect their respective traditional knowledge and cultural property. above discusses this approach. For a specific example, see Lucy Mary Christina Bell's study of the and her application of their ceremonial customs to intellectual property and traditional knowledge disputes.

To conclude, one might consider a suggestion by Val Napoleon (disclosure: also at the University of Victoria) as cited in : part of the problem may be the relegating of all traditional knowledge and related concepts to the category of “cultural” to begin with, making such claims “disembodied from its political, social, economic, and legal moorings within their societies [and thus causing] displacement of property from that which gives it meaning and coherence[, which] hinders efforts to protect it.” However one looks at it, it seems that today's increasingly globalized world all but ensures that even those who are not in want of intellectual property rights may nevertheless find themselves in need of them.

Cynthia Khoo is a JD Candidate at the University of Victoria.

The post Pride and Property: IP Law, Traditional Knowledge, and Cultural Heritage appeared first on IPOsgoode.