Merchandise sold with the 'Life of a Showgirl' branding may not be protected by the First Amendment and could be found to be infringing.
Swift's application for a trademark on the phrase weakens the 'expressive work' defense by signaling commercial intent.
The defense's avoidance of discussing their pre-launch trademark search suggests they may have knowingly proceeded despite the existing mark, which could imply willful infringement.
Opportunities Identified
The album title itself is very likely to be protected under the Rogers Test as an expressive work.
The plaintiff's high burden of proof for a preliminary injunction makes it likely to be denied, strengthening Swift's bargaining position.
Swift's immense fame makes the argument for consumer confusion between her album and the plaintiff's work difficult to prove.
The defense's mention of monetary damages could be an opening to settle the case and purchase the rights to the mark.