Trademark Clearance Is Not Optional

By: Stella Nadkarni

Taylor Swift’s legal team is currently defending a trademark infringement lawsuit over “The Life of a Showgirl,” the name of her 2025 album and adjacent merchandise line. The plaintiff, a Las Vegas performer who has operated under the registered mark “Confessions of a Showgirl” for over a decade, accuses Swift of trademark infringement, false designation, and unfair competition. The United States Patent and Trademark Office (USPTO) had flagged a likelihood of confusion when Swift’s team applied to register the name. They launched anyway.

The Swift matter is notable for its scale, as well as the individuals involved. However, the underlying mistake—building a brand without running a thorough clearance on its name—is not unusual. It happens across industries at every budget level. The consequences tend to surface at the worst possible moment: after the launch, after the inventory has been produced, and after an audience has formed around the name.

What Clearance Actually Involves

Trademark clearance is the process of confirming whether a proposed name is clear for use and registration prior to committing that name. A thorough search covers preexisting trademarks at the federal and state levels, as well as common-law rights (brands that have built legally enforceable rights through actual commercial use, with or without federal registration). That last category catches a lot of people off guard. The reality is that a company need not have a trademark registration to have rights, and unregistered rights are not necessarily weaker.

The standard is “likelihood of confusion,” meaning, would a consumer encountering both brands in the same market plausibly assume they share a source? Courts examine, among other factors, the similarity of the marks, the overlap of the goods or services, the channels of distribution, and the sophistication of the relevant buyers. Two names do not need to be identical to create confusion. Similar structure, phrasing, or commercial impression can be enough—particularly in overlapping markets.

A USPTO refusal during the application process is a meaningful signal, not a routine obstacle. When the trademark office issues a likelihood of confusion refusal, it identifies a potential legal conflict that exists independently of the registration process.

Where Brands Get Into Trouble

Most trademark problems do not start with bad faith, but rather, an abbreviated clearance search. It is important to remember that a quick internet search does not offer the same comprehensive risk assessment as a clearance opinion from an attorney. Among other issues, it is important to remember that expansion into other territories and categories warrants fresh clearance searches, as a trademark only grants protection in the territory and product/service category covered by that trademark. The Swift case illustrates this directly: the album title might have remained legally defensible on its own, but the risk grew when it was applied to consumer goods across fourteen product classes.

There is also the issue of reverse confusion. Most people think of trademark infringement as a small brand knocking off a larger one. Reverse confusion works in the opposite direction: a larger, well-resourced brand enters a space already occupied by a smaller one with the latter’s identity effectively disappearing into the former’s commercial footprint. Courts recognize this as a genuine injury, and “we’re the bigger brand” is not a defense.

Before You Launch

The practical sequence is straightforward:

• Before committing to a name for a product, brand, or creative project with commercial ambitions, run a clearance search and obtain a legal opinion on the findings. If conflicts exist, assess them. Some conflicts are meaningful, and some are not. A lawyer who works in this area can tell the difference.

• If the name is clear, file for registration promptly. Remember: you do not have to register a trademark to have rights, but a registration will provide significant procedural advantages should you ever need to enforce those rights.

• If you are already operating under a name that has not been cleared or registered, you should address this sooner rather than later. Although rights can be assessed and strengthened at any stage, it is harder to retroactively protect your rights after a conflict has materialized and the other side has retained counsel.

The costs to clear and file trademarks are fixed and relatively modest. The costs to defend against infringement claims or rebrand are neither. Your name deserves the same diligence as any other product you’re building.