This is Bloomberg Law with June Grao

from Bloomberg Radio.

Her name was Kitty. Made her money being

said.

Taylor Swift's The Life of a Showgirl

was the fastests selling album in

history. It became the pop star's 15th

number one album. Not quite as fastm

moving. In fact, about 6 months later

came the lawsuit by a former Las Vegas

showgirl who claimed that the album's

title infringed on her trademark for the

phrase Confessions of a Showgirl. and

Maron Flag is asking a court for a

preliminary injunction to stop Swift

from using the phrase while the

litigation plays out. My guest is

intellectual property litigator Terren

Ross, a partner at Katen Rosenman.

Terry, tell us about this trademark

infringement dispute.

>> The plaintiff was a showgirl in Las

Vegas. She at one point in time started

a blog, I guess it would have been

called in those days, talking about her

life as a showgirl and how challenging

and difficult life in the entertainment

business Las Vegas is. It morphed over

time into a cabaret show. She at one

point decided that she would register as

a trademark the title she was using for

this, which is Confessions of a

Showgirl. And that was back in 2014.

In August of 2025, last August, Taylor

Swift announces her next album will be

entitled The Life of a Showgirl based on

her experiences of her worldwide tour.

The plaintiff, Miss Flag, saw this at

the time, as everybody in America did.

Everybody knew that Taylor Swift had a

new album coming out. It was going to be

called Life of a Show of Girl. Miss Flag

chose not to do anything. In the paper,

she argues that, well, she did not

realize that it was going to be used as

broadly. She did not realize that Taylor

Swift was going to seek a trademark

registration in it. She has other

excuses. Shortly after the announcement,

Taylor Swift's lawyers applied for a

trademark registration in the word mark,

The Life of a Showgirl. In I think it

was November of 2025, the United States

Trademark Office issued a non-final

office action saying that they were

going to deny the application as likely

confusing with other marks that already

existed. Notwithstanding that, the album

was launched. Uh wide range of products

were sold. The album used the title the

life of a show girl and many of these

products that were being sold by Taylor

Swift's various business entities also

used that clearly in a trademark sense.

In March of 2026, the United States

Trademark Office suspended Taylor

Swift's application. There is a

suggestion in the papers that this was

at the request of the plaintiff Marin

Flag. I don't know if that's true or

not, but within weeks of the suspension

of Taylor Swift's trademark

registration, Miss Flag filed a lawsuit

in the Central District of California,

which is the Los Angeles area, in which

she alleged trademark infringement of

her registered mark in the trademark

confessions of a showgirl, as well as a

federal cause of action for unfair

competition and a California state cause

of action for unfair competition. And a

couple weeks after filing the lawsuit,

Miss Flag also filed a motion for a

preliminary injunction. Now, a

preliminary injunction essentially is a

procedure by which a plaintiff in a

lawsuit can have something stopped

pending the outcome of the lawsuit. It

is a very hard thing to get and for

understandable reasons. No decision is

made on the merits of the case and yet

you're asking the court to make the

defendant stop doing something. So there

it's a very high bar to obtain a

preliminary injunction. Miss Swift and

her business entities responded and

opposed that motion for a preliminary

injunction as you expect. And a hearing

was held on May 27th, 2026 in front of

Judge Marillo in the Central District

California. And that's essentially where

we are procedurally. And at the hearing

on the motion for preliminary injunction

last week, Taylor Swift's attorney

argued that The Life of a Showgirl

didn't infringe on Flag's trademark

because it was absolutely undisputed

that the album is an expressive work

entitled to legal protection. So

protected by the First Amendment. Is

that the basic defense argument?

>> Well, that's one of many arguments. The

defense took the typical shotgun

approach where it threw up every

argument under the sun, some of which

are stronger than others. Clearly, at

the core of the argument, however, was

the notion that the First Amendment

protects expressive speech against

trademark liability. And this is a

doctrine that was first pioneered by the

second circuit which is New York and

Connecticut in connection with a movie

that used Ginger Rogers name as part of

the title. And that lawsuit was called

Rogers versus Grimaldi. And the test

that was developed, the doctrine that

came out of that became known as the

Rogers test. And at its core, it says

that you cannot use trademark to

restrict expressive speech because of

the first amendment protections. You and

I talked about a case about a year and a

half ago in the Supreme Court that

adjusted the Rogers test. It was a case

involving Jack Daniels versus VIP Toys.

In that case, the Supreme Court cabined

the Rogers doctrine. In other words, it

took a position that Rogers doctrine has

to be narrowly interpreted to apply to

the titles of expressive works. In light

of that case, a lot of changes have

happened in the way we approach

trademark law in the context of

expressive work such as Taylor Swift's

album. Now, all that said, it seems

pretty clear to me that the album's

title, Life of Shelgurt, is going to be

preserved even in its changed form, the

Rogers test will still protect that

because it is being used as a title of

an expressive work, Taylor Swift's sound

recordings. And so, I think at the end

of the day, that's a win for Taylor

Swift. And indeed, it seems as if in her

briefs, the plaint of Miss Flag concedes

that that the Rogers test applies to the

title of the album. The distinction

drawn by a plaintiff is it should not

apply to anything else. And that is a

slightly better argument by the

plaintiff.

>> Swift's attorney also argued that the

plaintiff waited 8 months after the

album was first announced to ask for an

injunction, and that shows there's no

urgency or need for immediate relief.

and also that during some of those

months she tried to associate herself

with Swift and the Life of a Showgirl

album in her messaging. The defense says

in one post the plaintiff used an album

cover logo, audio from the album's title

track, hashtags including the life of a

showgirl, Swifties, and Taylor Nation.

Is that a problem for the plaintiff?

It's probably worthwhile to briefly

without giving a law school lecture

explain how you get preliminary

injunction. It's very hard to get it.

The party seeking a preliminary

injunction has to prove four things.

They have to prove first and foremost a

likelihood of success on the merits.

That at the end of the day, they're

going to win and it's not worth the time

to wait. Just give me the injunction.

Now, the second thing they have to prove

is irreparable harm. That money damages

at the end of the process isn't going to

be good enough. The third thing they got

to show is that the balance of hardships

tips in their favor. More pain is going

to be inflicted, more damage is going to

be inflicted on the plaintiff by waiting

until the end of the case for an

injunction than inflicted upon the

defendant by granting the injunction.

Now, and then the fourth thing you have

to show is that a preliminary junction

would be in the public interest. So,

this is part of what is known in the old

English law procedure is equitable

jurisdiction. So, it's within the equity

power of the court. You don't have a

jury deciding this. It's decided by the

court. If you come into equity seeking

some sort of equity remedy, as Miss Flag

has here, you have to do equity. And one

of the ways you get undone, one of the

ways you aren't doing equity is to come

into equity with unclean hands is the

doctrine that Stone has. And here the

defense is making the argument that Miss

Flag has been riding the coattales of

Taylor Swift and her phenomenal new

album, Life of a Showgirl. and that

constitutes unclean hands and therefore

on that ground alone a preliminary

injunction has to be denied because

coming into equity and she's not doing

equity. I think it's a real stretch of

an argument. I think it is an argument

that makes more sense in a jury setting

where you can persuade lay people that's

just unfair what's going on here. I

don't think that argument in of itself

will go very far. It's like a flavor of

the case.

>> So then what do you think is Swift's

best argument? I think the strongest

argument for the defense here was the

one they made that there's no likelihood

of success on the merits. And every

circuit court, every court of appeals

has a different standard and different

name. But here in the ninth circuit,

it's referred to as the sleek craft

factors based on an old ninth circuit

case. There are eight things you have to

show to prove likelihood of confusion.

They are questions of fact. Questions of

fact have to be decided by a jury, not

by a judge. It makes it really, really

hard in trying to get a PI in a

trademark case to satisfy the likelihood

of success in the marriage. Just think

about it this way. Are you confused by

this notion confessions of a showgirl

versus life of a showgirl knowing that

the one is Taylor Swift? This is the

problem with plaintiffs suing

celebrities. Everybody in the world

knows Taylor Swift. Come on, let's be

honest. And this is the bestselling

album of all the great albums and songs

she's had. This is the bestselling album

so far in her career and I believe the

bestselling album of all time. And it

makes it real hard to think in your mind

that oh this cabaret act being done by

Miss Flag is somehow associated with

Taylor Swift. It's just very hard to

see. But that said, a jury gets to make

that decision. And one big part of that

is has anybody really been confused out

there? The plaintiff says, "Oh yeah,

there's all these acts of confusion.

People are hashtagging me into

conversations, hashtagging my mark into

conversations, vice versa." I don't know

that that's actual confusion. So that's

why we do expert surveys. We go out and

we find the audience for these types of

goods and products and entertainment

services and we have the experts do

survey to see if anybody's actually

confused. We haven't done that yet. At

the end of the day, I think the district

court judge is likely to say, "I can't

on this record find a likelihood of

success on the merits because I can't

find likely confusion and therefore

could deny the preliminary injunction."

That's just my opinion. But, you know,

reading the tea leaves of the oral

argument at the hearing seemed like the

judge was disincined to grant

preliminary injunction. Anyway,

>> putting the preliminary injunction

aside, let's say this goes to trial.

Which side has the better case? I think

this is one of the more interesting

celebrity cases that I've seen come

along because both sides have pretty

good arguments and we are living in a

postJ Daniels world where the Supreme

Court has changed the Rogers test and we

really don't know the parameters of it.

The one thing I'm pretty confident of is

that the album will not have to change

its name and that the album will not get

recalled or selling of the album gets

stopped or streaming of the songs get

stopped. I would bet dollars to donuts

on that. And that's not simply because

the music's phenomenal and Taylor Swift

is who she is. I think as a matter of

law and approaching this from a neutral

perspective, I think the Rogers test

still applies to titles of musical

works. And so I think that's the one

outcome I'm certain of. However, I'm

really uncertain about all the other

products that are being sold by Taylor

Swift entities that are also using the

trademark Life of a Showgirl. I'll give

you one example. Apparently, some Taylor

Swift entity is selling candles with

that name. I don't know why they would

choose to sell candles with that name.

I'm not enough of a Swifty, I guess, to

understand that. I probably should have

consulted one of my daughters, but it is

using that that mark. And that's not

expressive conduct. And therefore, it's

not entitled, in my view, to the

protection of the Rogers test. Now, the

defense argues it's a promotional

product to support Yao. And I'm really

hardressed to see that. I went online

and it looked like these products are

just goods being sold to the public. And

Taylor Swift's business entities do this

all the time. They're constantly selling

t-shirts and things of that. Like, I

don't see how this promotes the album.

Maybe I'm missing something. The defense

points to another case that came out

recently in same court, central district

California, different judge though that

took the position that promotional

products are protected by the Rogers

test. And there not a lot of case law on

that out there. I'm not sure that court

got it right. But also, I think it's

factually different from here where

we're selling candles. I mean, if you're

selling Taylor Swift t-shirts with that

logo on it at a Life of the Showgirl

concert, I think you probably got an

argument it's promotional product. But I

don't know if these candles and other

goods are promotional products. One, and

two, the Supreme Court didn't tell us

whether or not promotional products are

covered by the Rogers test anymore. The

other argument that's made by the

plaintiff that I think is a very

interesting argument is that the fact

that Taylor Swift went out and applied

for a trademark registration. You only

apply for trademark registrations if you

intend to label or brand a good or

service. And that's exactly what the

Supreme Court Jack Daniels said is not

protected by the Rogers test. So that

might have been a mistake on the part of

the Taylor Swift entities because I

think by applying for the trademark,

they're sort of conceding that the

phrase life of Shuggirl is going to be

used in a business identifier sense. And

the Supreme Court said, "Sorry, you lose

protection when you do that." But these

are all issues of first impression

because we're in this new world with

this new Rogers test post Supreme Court

decision Jack Daniels. And that's what

makes this so interesting. I consider it

fascinating. And an interesting point

that the plaintiff makes in its motion

for preliminary junction is the fact

that if the lawyers who applied for Life

of a Showgirl registration on behalf of

Taylor Swift had done the most cursory

trademark search, they would have found

her trademark and that should have given

them pause. And the paper then goes on

to explain that assuming that the

lawyers did such a search that means

that Taylor Swift went forward with the

application and use of the mark knowing

that there was another mark out there

and therefore the infringement has to be

branded as willful and intentional which

is bad thing obviously especially on the

damages side. It is absolutely true that

whenever we file for a trademark

application, we conduct a search of the

existing register marks at a minimum. in

a really important trademark

application, as I would have considered

this to be a really, really important

trademark application for Taylor Swift's

new album. In addition to searching the

trademark registration list, we would

search all the 50 states doing business

names, uh, incorporation names. We would

do a Google search is a really

comprehensive search to make sure we

weren't getting into trouble and that we

were using a viable name and getting

registration a viable name before we

launched the business. I can't imagine

that didn't happen here. And that makes

it even more interesting whether or not

the lawyers who did the search and

reported back to Taylor Swift gave her

some sort of assurance or opinion that

she would prevail if challenged. And I

would have loved to been a fly in the

wall that discussion when they came back

and told Taylor Swift, "Uh, I'm sorry.

Somebody's already got confessions on

the showgirl, so we got a problem here."

I mean, that would have been very

interesting to see her reaction. But

that is ignored completely in the

defense opposition to the motion for

preliminary injunction, which I also

found interesting and very telling that

they want to stay away from any

discussion of whether or not they did a

search and what the search found and why

they went forward with the name. Anyway,

these little little subtleties in

briefs, it's always interesting to see

what the thinking is and what's going on

behind the scenes by a few little

subtleties in the briefs like that. So

Terry, just to clarify one thing, let's

say the Rogers test doesn't apply

because of the trademark element to it.

I mean, do they then go to a likelihood

of confusion test? What's the test after

that?

>> Yes, that's exactly right. That means

that the central defense, first

amendment defense is not applicable. And

so you engage in ordinary process of

determining whether or not trademark

infringement has taken place. And that

is the likelihood of confusion test. Is

the consumer for these goods and

services likely to be confused between

the two products, the two services as a

result of the two different trademarks

being used? And again, that's would go

to the jury for a decision. I I would

love to see how the survey of consumers

is constructed because I think that

would be complicated. I'd love to see

the results. You may get to

>> we may well you know there's an

interesting subtext in the pleadings on

the motion for preliminary injunction.

One of the requirements is you have to

show that the harm is irreparable. And

by irreparable they mean can't be fixed

by monetary damages. In arguing that the

harm is not irreparable. The defense

argued that we can simply pay money to

the plaintiff at the end of the day if

this is infringing. And I don't know how

that was intended, but I read it as an

invitation to settlement talks that

we'll simply buy the mark from you. And

certainly Taylor Swift's in a position

to throw money at at problems like this.

And I think if the plaintiff loses the

preliminary injunction motion, that puts

Taylor Swift and the defendants in much

stronger bargaining position. And we

might then see a settlement. And we

might never get to see a survey. We

might never get to see how the jury

reacts to any of this. But that's

probably for the best for the judicial

system. Although for those of us who

follow these things, we'd really like to

see a judicial decision on some of these

issues of first impression.

>> Oh yeah. Taylor Swift to the courtroom,

please.

>> That would be fascinating. That would be

a hard ticket to get. Almost as hard as

her tour.

>> Don't forget to ask your daughters about

those candles, Terry. Thanks so much as

always. That's intellectual property

litigator Terrence Ross. And that's it

for this edition of the Bloomberg Law

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