Could selling Taylor Swift merchandise open you up to a trademark infringement lawsuit?
SPARTA, N.C. – A factory nestled in the Blue Ridge Mountains of Sparta, North Carolina, is working overdrive to keep up with the demand for its Taylor Swift-inspired soaps. Sparta Candle Co. manufactures 1,000 bars every day. From the cucumber and honeydew “After Glow” scent to the sage and lavender “Reputation” fragrance, there’s an aroma for each of the singer’s 10 eras, and the smells reach homes across the U.S., Australia and Europe.
“People are just dying to get their hands on our soap,” says Jennifer Swenk, 31, CEO and creative mastermind behind the collection. “One of the things that I am most proud of is I really, really took the time to nail down the scents that I think really go with these eras and their essence.”
Swenk is part of a hidden “Taylor economy,” one that goes beyond her concert tickets, movie theater passes, album releases and shop/tour merchandise.
Swift officially earned the title of billionaire this month. But there are countless items linked to Taylor from which she doesn't profit. These are the fan-themed cruise trips through the Bahamas, 175,292 items for sale in Etsy shops and counting, and mom-and-pop storefronts like the Gasp Happy Store in Orlando, Florida, selling “A lot going on at the moment” keychains and “Taylor Swift is my therapist” trucker hats.
There are Kansas City Chiefs-themed jerseys with the name SWIFT across the back and thousands of types of friendship bracelets. There’s even a reporter designated to cover her impact (It’s me, hi!). The more the billionaire’s success grows, the more of a domino effect occurs with fans looking for all things "Bejeweled."
It's an issue as old as the music industry itself, with fans and others inspired by the artist or simply seeking to profit.
But under trademark law, are these products legal?
It’s a good question for Vanderbilt law professor Joseph Fishman, 41, who teaches intellectual property classes. He incorporates Swift into his teaching
“Trademarks are any kind of symbol that tells consumers where the source of something is,” he says from his office in Nashville, Tennessee. “That could be a product name. That could be a company name. It could be a logo. It could even be a sound or a smell.”
A Taylor Swift trademark means the singer is the source of a product. She stands behind it. She endorses it. She is officially licensing it.
The gray area for getting into legal trouble exists when someone other than the owner uses a trademark in a way that’s likely to confuse consumers into thinking the owner actually stands behind a product.
So, a T-shirt with the words “The Eras Tour” on it in the color and font that Swift has trademarked? Wouldn’t fly, especially if someone sold it outside a concert venue with licensed merchandise tents.
But fan art hand-drawn on a card with the words “Have an enchanting birthday!” would probably be fine. Consumers would be able to recognize the card didn’t come from the official store.taylorswift.com shop.
Some companies, such as Marvelous Mouse Travels with its now sold-out Taylor Swift cruise, are intentional in saying their offerings are not affiliated with or endorsed by the global businesswoman.
Some products, like Sparta Candle Co.’s soaps and candles, are simply “inspired” by Swift. Swenk adds a disclaimer to all references to say the products are not affiliated with the singer to prevent any confusion.
But the disclaimer doesn’t make businesses 100% safe from receiving a cease and desist letter.
Though Fishman hasn’t heard of any recent legal battles against fan-made items for Swift, that wasn’t the case a few years ago.
“Five or six years ago there were various individual sellers on Etsy selling homemade items that had names of Taylor Swift’s songs or albums on them,” Fishman said, “and they received cease and desist letters from Swift’s legal team.”
Swift is known for her 100-plus trademarks. Fan accounts knew re-recordings were coming when she applied and was approved for the album names with “Taylor’s Version.”
Swifties even noticed that Swift’s boyfriend, Travis Kelce, filed for five trademarks on Oct. 30: “Travis Kelce,” “Killatrav,” “Alright Nah,” “Flight 87” and “Kelce’s Krunch.”
“Most of the times, artists go after things that copy directly, that are essentially counterfeit,” said Douglas Masters, a managing partner who litigates and counsels in the areas of intellectual property at Loeb & Loeb in Chicago.
He said sports teams or leagues often go after merchants during games or big events. “Courts in various jurisdictions use a bunch of tests to differentiate: How close are the names? How close are the products? How famous are the marks?”
The burden of filing falls under the trademark owner, like Swift. Is it worth the financial stress of a case or potential public relations backlash to go after vendors?
“There’s a line,” Masters said. “You don’t have to go after everything. You have to make sure you go after enough stuff so you don’t lose your rights. But sometimes, the fact that people are out there doing stuff just creates buzz around you.”
Swenk's business has 40 original soaps, not including the era scents, and most of the fragrances have sold out ahead of the holiday season. Her production has almost outgrown the factory a few miles away from Main Street. Just as her soaps are inspired by Swift, so is she.
“‘Reputation’ is one of the most important albums, and I don’t think it gets the credit it really deserves,” Swenk says, “because after ‘1989’ Taylor could have easily just quit. She was getting all that criticism and the whole internet was hating her. She had plenty of money. She was totally set. But she came back with ‘Reputation’ and just this different vibe, and it was so edgy, and it was just kind of telling all the haters, ‘I’m not going anywhere.’ And that has meant so much to me.”
Swenk, like so many business owners, hopes to someday collaborate with the “End Game” singer and land her soaps on Swift’s website. Until then, she’s doing all she can to keep her side of the street clean. And she has enlisted her 71-year-old dad, Duane Swenk, to help.
Duane Swenk is a TikTok influencer. If you haven’t seen his videos of cutting soaps, ask your kids to show you.
Fans are drawn to his “Bob Ross”-like voice-overs, his wrists stacked with friendship bracelets and his spunky dance moves. If every person in his town of 1,700 were to click on his most viral video, they would make up less than 1/5000th of the views.
“What’s really cool is when 6- to 8-year-old kids come into the shop and they bring me a bracelet,” he says. “I now have thousands of cyber grandkids. It’s like, ‘I can be a good influence − a good, wholesome influence − on young people,’ which is what Taylor Swift is all about. So it’s kind of cool.”
Follow Bryan West, the USA TODAY Network's Taylor Swift reporter, on Instagram, TikTok and X as @BryanWestTV.
