T Swift Lawsuit

Case 2:21-cv-00069-DAO Document 2 Filed 02/02/21 PageID.2 Page 1 of 35

CODY Z. WINCHESTER (7197) JARED L. CHERRY (11534) PHILLIPS WINCHESTER, LLC 4001 South 700 East, Suite 500 Salt Lake City, Utah 84107 Tel: (801) 935-4932 Fax: (801) 935-4936 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION EVERMORE PARK, LLC, a Delaware Limited Liability Company, Plaintiff,

Civil Action No.: 2:21-cv-00069

v.

Honorable: Magistrate Judge Daphne A. Oberg

TAYLOR SWIFT, an individual, TAS RIGHTS MANAGEMENT, LLC, a Tennessee Limited Liability Company, and TAYLOR NATION, LLC, a Tennessee Limited Liability Company, Defendants.

COMPLAINT Plaintiff Evermore Park, LLC (“Evermore”), for its claims against defendants Taylor Swift, TAS Rights Management, LLC, and Taylor Nation, LLC (“Defendants”), alleges as follows: PARTIES 1.

Evermore Park, LLC is a Delaware limited liability company with its principal

place of business at 382 South Evermore Lane, Pleasant Grove, Utah 84062.

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2.

Taylor Swift is an individual and resident of the state of Tennessee. TAS Rights

Management, LLC is a Tennessee limited liability company with its principal place of business at 718 Thompson Lane, Suite 108256, Nashville, Tennessee 37204. 3.

Taylor Nation, LLC is a Tennessee limited liability company with its principal

place of business at 718 Thompson Lane, Suite 108256, Nashville, Tennessee 37204. JURISDICTION AND VENUE 4.

This action involves infringement of U.S. Trademark Reg. No. 4,720,740 for

EVERMORE, U.S. Trademark Reg. No. 5,329,899 for EVERMORE, U.S. Trademark Reg. No. 5,617,849 for EVERMORE, and U.S. Trademark Reg. No. 5,597,168 for EVERMORE (the “Evermore Trademark Registrations”). 5.

Evermore is the owner of the Evermore Trademark Registrations.

6.

This action also involves infringement of Evermore’s common law trademark

rights in the EVERMORE Trademark. 7.

This Court has subject matter jurisdiction over the claims relating to the Lanham

Act (15 U.S.C. §§ 1125 et seq.) and pursuant to 28 U.S.C. § 1331 (federal subject matter jurisdiction) and 28 U.S.C. §1338(a) (any act of Congress relating to copyrights, patents, and trademarks). 8.

Plaintiff’s principal place of business is in this judicial district, and the damage

inflicted by Defendants is directed toward and felt in this district. 9.

Defendants are subject to either general jurisdiction or specific jurisdiction in this

district. 10.

Defendants conduct substantial business in this district, including the sale of

music, films, merchandise, and tickets for live performances.

2

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11.

For example, Ms. Swift’s “1989 World Tour” included a concert in Salt Lake

City. One outlet reported the average cost of a ticket being $326 and noted that the average ticket price “tops all Utah Jazz games in that timespan, as well as concerts by One Direction, Justin Bieber, George Strait and many others”1 between 2010 and 2015. 12.

Ms. Swift’s film Miss Americana premiered at the Sundance Film Festival in Park

City, Utah, on January 23, 2020, and Taylor Swift appeared at the premier to greet fans and “posed for selfies with a lucky few.”2 13.

Taylor Swift also visited Utah on or about August 6, 2020.3

14.

Defendant Taylor Nation, LLC operates an interactive website at

store.taylorswift.com that allows residents of the state of Utah to purchase goods from Defendants, including goods bearing the EVERMORE Trademark. 15.

Residents of the state of Utah have purchased goods from store.taylorswift.com.

16.

Defendants have engaged in the sale of goods bearing unauthorized reproductions

of Plaintiff’s trademarks in this district. 17.

By virtue of Defendants’ extensive commercial activities in this district,

Defendants are subject to general jurisdiction in this district.

1

See https://seatgeek.com/tba/music/ticket-prices-for-taylor-swift-in-salt-lake-city/. Lottie E. Johnson and Sarah Harris, Taylor Swift Brings Star Power to Opening Night of the 2020 Sundance Film Festival in Park City, Deseret News, January 23, 2020, available at https://www.deseret.com/entertainment/2020/1/23/21077790/taylor-swift-sundance-film-festivalmiss-americana-hillary-clinton-lin-manuel-miranda. 3 Alyssa Ray, Joe Alwyn Shares Picturesque Photo From His and Taylor Swift’s Utah Getaway, E Online, August 6, 2020, available at https://www.eonline.com/news/1177145/joe-alwynshares-picturesque-photo-from-his-and-taylor-swifts-utah-getaway. 2

3

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18.

In the alternative, Defendants are subject to specific jurisdiction based on sales of

goods to residents of Utah bearing the EVERMORE Trademark on the interactive website, store.taylorswift.com. EVERMORE PARK 19.

Plaintiff operates an immersive experience theme park (“Evermore Park”) in

which performers who portray fantasy characters are the main attraction. 20.

Evermore’s immersive experience includes a wide variety of actors and musicians

that create a world of fantasy in which guests interact with performers. 21.

Evermore has invested approximately $37,000,000 in the creation and promotion

of Evermore Park and the EVERMORE Trademark. Exhibit A, Dec. of Ken Bretschneider at ¶ 2. 22.

Much of this investment has come from Mr. Ken Bretschneider, Evermore’s

CEO, for whom Evermore has been a life-long dream. As Mr. Bretschneider explained in an interview: As a child I always felt escapism was a really important thing . . . . I grew up in a rough situation, with a very abusive father, but I had the wonderful opportunity of being around other people who were mostly artists. They helped me escape out of my negative world and embrace a positive one. That really meant a lot to me and set an important tone through my entire life.4 23.

Beginning in 2008, Mr. Bretschneider began hosting a Halloween event for his

community at his home in Lindon, Utah, that grew each year until, in 2013, 11,000 people visited Mr. Bretschneider’s home.5 This was the beginning of Evermore, which hosted its first Halloween event in 2014 and began construction of Evermore Park in 2017.

4

See https://www.cladglobal.com/architecture_design_features?codeid=33232. See https://www.heraldextra.com/entertainment/things-to-know-about-the-magic-of-evermorepark-in/collection_747d0b7c-7b2b-5f52-ac97-27538c6ad24c.html#4. 5

4

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24.

Evermore has attracted wide recognition for its innovative and unique approach to

entertainment. For example, the LA Times called Evermore Park the “future of theme parks,”6 Time Magazine named Evermore Park one of the “World’s Coolest Places” in 2019,7 and Evermore’s CEO was named one of the top theme park influencers.8 25.

Buzzfeed’s “Bring Me,” which reports on travel and entertainment, created a

video about Evermore Park that, as of the time of the filing of this action, had been viewed more than 25,000,000 times, as shown in the screen capture below. The video has also generated more than 65,000 comments from viewers.9

26.

Evermore has attracted interest from a major entertainment studio, which is in

discussions with Evermore about the creation of other forms of entertainment content, including TV shows, video games, card and board games, books, AR and VR experiences, and music, based on the world of Evermore.

EVERMORE’S TRADEMARK RIGHTS

6

Todd Martens, Westworld, Ho! Inside Evermore, Where the Future of Theme Parks is Not about Rides but Play, LA Times, Nov. 9, 2018. Available at https://www.latimes.com/entertainment/herocomplex/la-et-ms-evermore-future-of-theme-parks20181109-story.html. 7 Available at https://time.com/collection/worlds-coolest-places-2019/5736007/evermore-parkpleasant-grove-utah/. 8 Available at https://blooloop.com/blooloop-influencers/2020/ken-bretschneider-evermore2020/. 9 Available at https://www.facebook.com/buzzfeedbringme/videos/2158614870839140.

5

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27.

Evermore has obtained the following registrations for the EVERMORE

Trademark. Copies of the trademark registration certificates for the registrations listed below are attached hereto as Exhibit B. Evermore Trademark Registrations Trademark

Reg. No.

Reg. Date

Goods and Services

EVERMORE

4,720,740

4/14/2015

Int.’l Class 25: Coats; Dresses; Hats; Jackets; Pants; Shirts; Shoes; Shorts; Socks; Sweaters.

EVERMORE

5,329,899

11/7/2017

Int.’l Class 41: Providing Halloween themed park services.

5,617,849

11/27/2018

Int.’l Class 25: Coats; Dresses; Hats; Jackets; Pants; Shorts; Socks; Sweaters. Int.’l Class 41: Amusement parks.

5,597,168

10/30/2018

Int.’l Class 41: Entertainment services in the nature of live visual and audio performances by an actor; Entertainment services in the nature of augmented reality attractions; Providing theme park services.

EVERMORE

28.

Evermore’s investment in developing and promoting the EVERMORE Trademark

includes:

(a) Expending $406,835.00 in advertising and promoting the EVERMORE Trademark;

(b) Purchasing the domain name EVERMORE.COM at a cost of $300,000.00; and

(c) Expending $228,587 in direct labor costs for advertising and promoting the EVERMORE Trademark. Exhibit A, Dec. of Ken Bretschneider at ¶ 3. 29.

Since opening its doors in 2018, to date, Evermore Park has provided its

entertainment services to 142,784 guests. Exhibit A, Dec. of Ken Bretschneider at ¶ 4.

6

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30.

Evermore offers clothing items bearing the EVERMORE Trademark. Some

examples of clothing items bearing the EVERMORE Trademark are shown below. Exhibit A, Dec. of Ken Bretschneider at ¶ 5. EVERMORE Hoodie

EVERMORE T-Shirt

EVERMORE Hat

7

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31.

Evermore also uses the EVERMORE Trademark in connection with goods and

services in addition to those specifically enumerated in Evermore’s Trademark Registrations. Exhibit A, Dec. of Ken Bretschneider at ¶ 6. 32.

For example, Evermore commissioned the creation of two original music scores

that Evermore sells under the EVERMORE Trademark through a variety of outlets, such as Apple Music.10 The album artwork for the scores features the EVERMORE Trademark, as shown below. Exhibit A, Dec. of Ken Bretschneider at ¶ 7.

33.

Evermore also uses the EVERMORE Trademark in connection with keychains,

commemorative coins, postcards, and pins, as shown below. Exhibit A, Dec. of Ken Bretschneider at ¶ 8.

10

See Evermore Park, Vol. 1: The Soundtrack of Magical Lore (Original Score), available at https://music.apple.com/us/album/evermore-park-vol-1-soundtrack-magical-loreoriginal/1442138785?uo=4&app=music; Evermore Park, Vol. 2: The Soundtrack of Cursed Lore (Original Score), available at https://music.apple.com/us/album/evermore-park-vol-2soundtrack-cursed-lore-original/1438239366.

8

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EVERMORE Keychain

EVERMORE Commemorative Coin

EVERMORE Postcard

EVERMORE Pin

DEFENDANTS’ ADOPTION OF THE EVERMORE TRADEMARK 34.

On December 11, 2020, Taylor Swift released an album titled Evermore (the

“Evermore Album”).

9

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35.

Taylor Swift’s description of the Evermore Album echoes descriptions of

Evermore, including mirroring the unique term (i.e., “escapism”) used by Ken Bretschneider to describe Evermore Park. Specifically, Ms. Swift writes in the booklet that accompanies the Evermore Album: “I loved the escapism I found in these imaginary/not imaginary tales. I loved the ways you welcomed the dreamscapes and tragedies of epic tales of love lost and found.” A copy of this booklet is attached as Exhibit C. 36.

Prior to Defendants’ release of the Evermore Album, numerous published

descriptions of Evermore referred to the “epic tales” that play out at Evermore Park, including in the following: (a)

Role Play and Epic Quests at a Utah Theme Park, Arkansas Democrat Gazette, Dec. 23, 2018,11

(b)

This Is What Evermore Is Like, Utah Business Magazine, Aug. 16, 2019 (“[w]here else can you freely walk amongst thousands of ancient artifacts, embark on epic quests, or trade your beloved bow away to a stranger in a tavern?”),12 and

(c)

Evermore: Utah’s New Fantasy Theme Park Adds Summer Event, Amusement Park News, May 30, 2019 (“Themed like a European village, the park has buildings, characters, and an ‘epic story’”).13

11

Available at https://www.arkansasonline.com/news/2018/dec/23/the-play-s-the-thing20181223/. 12 Available at https://www.utahbusiness.com/evermore-utah/. 13 Available at https://amusementparkwarehouse.com/newsserver/evermore-utah-apos-s-newfantasy-theme-park-adds-summer-event-1559174400.

10

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37.

On December 11, 2020, or shortly thereafter, the website operated by Taylor

Nation, LLC, store.taylorswift.com, began offering the Evermore Album in a digital version (with explicit or “clean” lyrics), a CD version (with explicit or “clean” lyrics), a vinyl format, and a cassette format. 38.

The Evermore Album includes a song titled Evermore and 14 additional songs,

six (6) of which include explicit lyrics. The explicit versions of the Evermore Album are provided with the “parental advisory” warning shown below.

39.

On December 11, 2020, or shortly thereafter, the website operated by Taylor

Nation, LLC, store.taylorswift.com, began offering “Evermore Merch,”14 at the address: https://store.taylorswift.com/collections/evermore-merch. 40.

The “Evermore Merch” collection offered at store.taylorswift.com included the

following clothing items:

14

Defendants removed the “Evermore Merch” pages after Plaintiff sent the cease and desist letter attached as Exhibit D; however, all of the same products remain available.

11

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(a) the “ever and evermore hoodie,”15 (b) the “bandit like me” hoodie,16 (c) the “cowboy like me” pullover,17 (d) the “bluest skies the darkest gray” pullover,18 (e) the “cardigan,”19 (f) the “life was a willow” long sleeve,20 (g) the “forever is the sweetest con” long sleeve,21 (h) the “above the trees” t-shirt,22 (i) the “roots in my dreamland” t-shirt,23

15

Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=1, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-everand-evermore-hoodie. 16 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=1, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-banditlike-me-hoodie. 17 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=2, now available at https://store.taylorswift.com/collections/new-merchandise/products/thecowboy-like-me-pullover. 18 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=2, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-bluestskies-the-darkest-gray-pullover. 19 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=2, now available at https://store.taylorswift.com/collections/new-merchandise/products/thecardigan-limited-edition. 20 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=3, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-lifewas-a-willow-long-sleeve. 21 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=3, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-foreveris-the-sweetest-con-long-sleeve. 22 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=3, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-abovethe-trees-t-shirt. 23 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=3, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-rootsin-my-dreamland-t-shirt.

12

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(j) the “in from the snow” beanie,24 and (k) the “tolerate it” socks.25 41.

The clothing items sold by Defendants under the EVERMORE Trademark are

counterfeit goods because they use a spurious mark that is identical with Plaintiff’s Trademark Reg. No. 4,720,740. See 15 U.S.C. § 1127 (“A ‘counterfeit’ is a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.”). 42.

The “Evermore Merch” collection also included other items, such as lithographs,

candles, cellular phone accessories, and the “fancy shit” mug.26 43.

The Evermore Album is available through the same outlet as Evermore’s own

recorded music, namely Apple Music,27 among others. 44.

On December 10, 2020, Defendant TAS Rights Management, LLC filed eight (8)

intent-to-use trademark applications with the United States Patent and Trademark Office (“USPTO”) for the trademark TAYLOR SWIFT EVERMORE ALBUM, as listed below. Defendants’ Trademark Applications Trademark

Serial No.

TAYLOR SWIFT EVERMORE ALBUM

90/371,765

TAYLOR SWIFT EVERMORE ALBUM

90/371,734

TAYLOR SWIFT EVERMORE ALBUM

90/371,709

TAYLOR SWIFT EVERMORE ALBUM

90/371,730

24

Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=4, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-in-fromthe-snow-beanie. 25 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=4, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-tolerateit-socks. 26 Item previously available at https://store.taylorswift.com/collections/evermore-merch?page=5, now available at https://store.taylorswift.com/collections/new-merchandise/products/the-fancyshit-mug. 27 See https://music.apple.com/us/album/evermore/1544275966.

13

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45.

TAYLOR SWIFT EVERMORE ALBUM

90/371,716

TAYLOR SWIFT EVERMORE ALBUM

90/371,767

TAYLOR SWIFT EVERMORE ALBUM

90/371,763

TAYLOR SWIFT EVERMORE ALBUM

90/371,724

On information and belief, Evermore alleges that Defendants or their agents

conducted a search of the filings of the USPTO prior to filing the above-listed trademark applications. 46.

On information and belief, Evermore alleges that one or more of Evermore’s

Trademark Registrations was identified in response to Defendants’ search of the filings of the USPTO. 47.

On information and belief, Evermore alleges that Defendants or their agents had

actual knowledge of one or more of the Evermore Trademark Registrations prior to December 10, 2020. 48.

On information and belief, Evermore alleges that Defendants or their agents had

actual knowledge of Evermore’s use of the EVERMORE Trademark prior to December 10, 2020. 49.

On information and belief, Evermore alleges that Defendants or their agents

conducted a search on Google.com or other search engine for the term “Evermore” and, as a consequence, had actual knowledge about Evermore. 50.

On information and belief, Evermore alleges that Defendants or their agents

visited www.evermore.com prior to December 10, 2020.

14

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51.

On information and belief, Evermore alleges that Defendants or their agents chose

to adopt the EVERMORE Trademark despite their actual knowledge of Evermore’s prior use and registration of the EVERMORE Trademark. 52.

The trademark applications filed by TAS Rights Management, LLC cover each

category of item currently being advertised on Evermore Park’s website, namely: “ornamental cloth patches,”28 “three-dimensional plastic ornaments,” 29 “purses,” “all-purpose carrying bags,” “key wallets,” and “key pouches.”30 53.

A screen capture from Evermore Park’s website is reproduced below and shows

Evermore’s offering of “ornamental cloth patches,” “three-dimensional plastic ornaments,” “purses,” “all-purpose carrying bags,” “key wallets,” and “key pouches” offered under the EVERMORE Trademark.

28

Trademark Application Serial No. 90/371,763. Trademark Application Serial No. 90/371,730. 30 Trademark Application Serial No. 90/371,724. 29

15

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54.

The fact that every item depicted on Evermore’s website is explicitly covered by

one of Defendants’ Trademark Applications is evidence of Defendants’ actual knowledge of Evermore’s prior adoption and use of the EVERMORE Trademark. 55.

Ms. Swift is an “actor.”

56.

Ms. Swift has acted in in numerous films, television series, and videos.

57.

IMDB attributes 64 film credits to Ms. Swift and identifies Ms. Swift as an

“actress,” and lists 64 videos in which Ms. Swift appeared as an “actress.”31 58.

Among Ms. Swift’s works as an actor is the music video willow.32

31

See https://www.imdb.com/name/nm2357847/?ref_=fn_al_nm_1. https://www.youtube.com/watch?v=RsEZmictANA&list=PLINj2JJM1jxP3taLik1NA6CFs5LTD7uw.

32

16

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59.

In the music video willow, Ms. Swift emerges from a hole in a tree in a scene that

is depicted below.

17

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60.

The above depicted scene mimics the cover art of Evermore’s albums, particularly

volume 2, which is reproduced below.

61.

The similarities between the above depicted scene from willow and the cover art

of Evermore’s album include a large tree, an opening in the trunk of the tree, prominent and exposed roots, and purple leaves. 62.

On information and belief, Plaintiffs allege that Taylor Swift has offered or is

planning to offer “entertainment services in the nature of live visual and audio performances” using the EVERMORE Trademark, such as concert performances, television performances, etc. 63.

Such services offered by Defendants under the EVERMORE Trademark are

counterfeits because they use a spurious mark that is identical with Plaintiff’s Trademark Reg. No. 5,597,168. 15 U.S.C. § 1127.

18

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DEFENDANTS’ ADOPTION AND USE OF THE EVERMORE TRADEMARK HAS RESULTED IN ACTUAL CONFUSION 64.

Visitors to Evermore Park asked staff members whether the Evermore Album was

the result of a collaboration between Evermore and Taylor Swift or some other type of relationship. Exhibit E, Dec. of Andrea Measom. 65.

Evermore uses Google Analytics to track various metrics related to the website

available at evermore.com. Exhibit F, Dec. of Jaren Tolman. 66.

On the day that Taylor Swift announced the Evermore Album (i.e., December 10,

2020), web traffic on Evermore Park’s website, www.evermore.com, spiked 330.4% in comparison to traffic on the previous day (i.e., December 9, 2020). Exhibit G, Page 5 (showing 7,179 visitors on December 10, 2020) and Exhibit G, Page 4 (showing 1,668 visitors on December 9, 2020).

67.

Metrics related to the traffic to www.evermore.com after December 10, 2020,

deviated substantially from typical traffic. including a spike in the site’s “bounce rate,”33 a shift

33

The service Evermore uses to monitor its web traffic, Google Analytics, defines “bounce rate” as follows: “Bounce rate is single-page sessions divided by all sessions, or the percentage of all sessions on your site in which users viewed only a single page and triggered only a single request to the Analytics server.” See https://support.google.com/analytics/answer/1009409. Further, Google explains in response to the question of whether a high bounce rate is “a bad thing,” “If the success of your site depends on users viewing more than one page, then, yes, a high bounce rate is bad. For example, if your home page is the gateway to the rest of your site (e.g., news articles, product pages, your checkout process) and a high percentage of users are viewing only your home page, then you don’t want a high bounce rate.” Id.

19

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in the “channels” through which users arrive at the website, and a change in the mix of new versus returning users. 68.

Selected metrics comparing December 2, 2020 to December 11, 2020 are shown

below. Change34

Users

December 2, 2020 Exhibit G, Page 2 1,497

December 11, 2020 Exhibit G, Page 6 5,012

+234.8%

Direct Traffic

31.4%

73%

+132.5%

Bounce Rate

48.85%

76.28%

+56.2%

Avg. Session Duration

134 Seconds

60 Seconds

-55.2%

69.

Evermore did not make any changes to its online marketing efforts during this

period that would explain these changes. Exhibit F, Dec. of Jaren Tolman at ¶ 5. 70.

Users of social media made direct association between Taylor Swift and

Evermore Park. One example is illustrated below.

34

Calculated by subtracting December 2 metric from December 10 metric, and dividing the result by the December 2 metric. For example, the calculation of the change in the “Users” metric is determined as 5,012-1,497 = 3,515, and 3,515 / 1497 = 234.8%.

20

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A DELUGE OF ONLINE INFORMATION ABOUT DEFENDANTS AND THE EVERMORE ALBUM HAS CROWDED OUT MATERIAL ABOUT EVERMORE 71.

On the first page of search results on Google.com for the term “Evermore,” one

(1) result relates to Evermore Park, one (1) result directs to a disambiguation page for “Evermore” on Wikipedia, and the remainder of the results relate to the Evermore Album and Taylor Swift. A google.com screenshot showing the results of a Google search for the term “Evermore” on January 31, 2021, is attached as Exhibit H. 72.

The first “Knowledge Panel” that appears on Google.com in response to a search

for the term “Evermore” relates to the Evermore Album and Taylor Swift, knocking the “Knowledge” panel that relates to Evermore Park off a typical high-definition screen. Exhibit H (showing screen captures on a screen with resolution 1920 x 1080 pixels). 73.

Prior to December 11, 2020, the first page of a search of Google.com for

“Evermore” produced a majority of results with content relating to Evermore, including Evermore’s social media accounts, news articles about Evermore, and reviews of Evermore Park. Exhibit A, Dec. of Ken Bretschneider at ¶ 9. 74.

The second page of search results on Google.com for the term “Evermore,”

includes five (5) results relating to the Evermore Album and Taylor Swift and only one (1) result relating to Evermore (i.e., Evermore’s Facebook page). A google.com screenshot showing the second page of search results of a Google search for the term “Evermore” on January 31, 2021, is attached as Exhibit I. 75.

Evermore will incur additional marketing and promotional costs as it strives to

compete with the torrent of information related to the Evermore Album and Taylor Swift.

21

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DEFENDANTS REFUSE TO CEASE AND DESIST FROM THEIR USE OF THE EVERMORE TRADEMARK 76.

Within days of the release of the Evermore Album, Evermore sent a cease and

desist letter (the “Cease and Desist Letter”) to Defendants. Exhibit D. 77.

Counsel for Defendants responded to the Cease and Desist Letter on December

29, 2020, stating Defendants’ refusal to discontinue use of the EVERMORE Trademark, and claiming “[i]f anything, your client’s website traffic has actually increased as a result of the release of Ms. Swift’s recent album which, in turn could only serve to enhance your client’s mark.” Exhibit J, Ltr. from J. D. Baldridge to J. Cherry dated Dec. 29, 2020, at page 4 (emphasis in original). 78.

Defendants’ claim that their use of the EVERMORE Trademark “enhance[s]”

Evermore’s mark reflects a fundamental misunderstanding of trademark law, and similar arguments have been considered and flatly rejected: Plaintiffs argue that Defendant’s contention that Plaintiffs are receiving a benefit from Defendant’s promotion of its trademark constitutes a misunderstanding of trademark law. The Court agrees. The Court finds that the loss sustained by a trademark holder from the unauthorized use of its trademarks is the loss of the trademark holder’s ability to control its reputation. In the context of trademark litigation, grounds for irreparable harm include loss of control of reputation, loss of trade, and loss of goodwill, regardless of whether the infringer is putting the mark to a good or favorable use. As the Liquid Glass Court[35] stated “while imitation is the sincerest form of flattery, it is equally true, especially in the context of trademark litigation, that flattery will often get you nowhere.” Audi v. D’Amato, 341 F. Supp.2d 734, 746 (E.D. Mich. 2004) (internal citation and quotation marks omitted), aff’d 469 F.3d 534, 545 (6th Cir. 2006). 79.

After receiving the Cease and Desist Letter, Defendants changed the title and

URL of the “Evermore Merch” pages at store.taylorswift.com. See Footnotes 16-27, above.

35

Liquid Glass Enter. v. Porsche AG, 8 F. Supp.2d 398, 406 (D.N.J. 1998).

22

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80.

Counsel for Defendants falsely claimed: “contrary to the assertion in your letter,

the ‘merch’ on Ms. Swift’s website only contains pictures of Ms. Swift or album lyrics and is not identified as an ‘evermore’ collection. Even the URL where this merch is available makes no mention of ‘Evermore ….’” Exhibit J, at page 5. 81.

Cached versions of Defendants’ website page showing “all collections,” dated

December 13, 2020,36 are available from Archive.org. 82.

The “all collections” page shown on Defendants’ website includes “evermore

merch,” as shown in the following image of store.taylorswift.com from Archive.org.

36

Available at https://web.archive.org/web/20201213051212/store.taylorswift.com/collections.

23

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83.

The text in the bottom right corner of the screen that appears when a user hovers

the mouse over the “view products” button on the “evermore merch” is enlarged below, and shows “evermore-merch” included in the URL.

84.

Teen Vogue reported on December 13, 2020 on Defendants’ release of

“‘evermore’ Merch,” as shown in the following screen capture. Exhibit K.37

37

Available at: https://www.teenvogue.com/story/taylor-swift-evermore-merch-willow-remix.

24

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85.

The claim made by counsel for Defendants that Defendants’ website did not

include “an ‘evermore’ collection” is false. 86.

The claim made by counsel for Defendants that “[e]ven the URL where this

merch is available makes no mention of ‘Evermore’” is false. 87.

The false claims made by Defendants and/or Defendants’ counsel is an attempt to

minimize Defendants’ use of the EVERMORE Trademark. 88.

Defendants have also falsely claimed that Evermore is bankrupt, which, even if

true, does not provide a defense to Evermore’s claims of trademark infringement. 89.

In telephone conversations, counsel for Defendants strongly insinuated that

Defendants’ refusal to address Evermore’s claims is at least partially based on the belief that Evermore lacks the financial resources to pursue its claims due to the Coronavirus pandemic. 90.

Counsel for Defendants has made multiple references in written communications

to Evermore’s “financial difficulties due to the COVID-19 pandemic.” Exhibit L, Ltr. from J. D. Baldridge to J. Cherry, dated January 11, 2021. 91.

In addition, Taylor Swift has repeatedly sought to portray herself in the public as

a defender of artists, and, in particular, struggling artists. For example, Ms. Swift criticized Apple’s decision to offer a three-month free trial of Apple Music, stating: “We don’t ask you for free iPhones. Please don’t ask us to provide you with our music for no compensation.”38 92.

In her recent appearance at the Sundance Film Festival, Ms. Swift spoke about her

public battle with her former record label over ownership of music, stating: “Well, I do sleep

38

Hugh McIntrye, Taylor Swift’s Letter To Apple: Stern, Polite, And Necessary, Forbes, June 21, 2015, available at https://www.forbes.com/sites/hughmcintyre/2015/06/21/taylor-swifts-letter-toapple-stern-polite-and-necessary/?sh=384c251d113d.

25

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well at night knowing that I’m right, and knowing that in 10 years it will have been a good thing that I spoke about artists’ rights to their art ….”39 93.

Despite her publicly stated concerns for small and struggling artists facing larger

and better-funded opponents, such as Apple and the record labels, Ms. Swift now seeks to bury the previously released Evermore albums created by Evermore and misappropriate the EVERMORE Trademark with no compensation to Evermore because the company is facing “financial difficulties due to the COVID-19 pandemic” and cannot afford to engage in protracted litigation. 94.

Defendants’ attempts to exploit Evermore’s weakened position due to the

Coronavirus pandemic is one fact among many that renders this case exceptional. 95.

Defendants are realizing tremendous profits from the Evermore Album, which

debuted at No. 1 on the Billboard charts, and having sold 720,000 equivalent album units through January 21, 2021.40 96.

Defendants’ revenue for sales under the EVERMORE Trademark is likely to

reach tens of millions of dollars. FIRST CLAIM FOR RELIEF (Trademark Infringement under 15 U.S.C. § 1114(1)) 97.

The allegations set forth above are incorporated herein by this reference.

98.

EVERMORE is a duly registered trademark owned by Evermore.

39

Chris Willman, Taylor Swift: No Longer ‘Polite at All Costs,’ Variety, Jan. 21, 2020, available at https://variety.com/2020/music/features/taylor-swift-politics-sundance-documentary-missamericana-1203471910/. 40 Taylor Swift's 'Coney Island' and 'No Body, No Crime' Debut on Airplay Charts, Joining 'Willow', Billboard, Available at https://www.billboard.com/articles/business/chartbeat/9517376/taylor-swift-evermore-radio-rollout.

26

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99.

Defendants have, without Plaintiff’s consent, used and continue to use in

commerce reproductions, copies, counterfeits, or colorable imitations of the EVERMORE Trademark. 100.

Defendants’ actions have caused actual confusion, mistake, or deception

regarding the source, sponsorship, and/or affiliation of Defendants’ goods and services. 101.

Defendants’ actions are likely to cause confusion, mistake, or deception in

violation of 15 U.S.C. § 1114(1). 102.

A likelihood of confusion is determined based upon: (1) the degree of similarity

between the marks; (2) the intent of the alleged infringer in using the mark; (3) evidence of actual confusion; (4) similarity of products and manner of marketing; (5) the degree of care likely to be exercised by purchasers; and (6) the strength or weakness of the mark. Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002) (citing King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089-90 (10th Cir. 1999)). 103.

With regard to the first factor, the EVERMORE Trademark Registrations are

identical phonetically and in appearance and meaning to the EVERMORE Trademark used by Defendants. As such, the first factor strongly weighs in Plaintiff’s favor.41 104.

With regard to the second factor, the EVERMORE Trademark Registrations

constitute constructive notice of Plaintiff’s claim of ownership of the EVERMORE Trademark. 15 U.S.C. § 1072 (“Registration of a mark on the principal register provided by this chapter or

41

4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION (“MCCARTHY”) § 23:20 (5th ed.) (“Cases where a defendant uses an identical mark on competitive goods hardly ever find their way into the appellate reports. Such cases are “open and shut” and do not involve protracted litigation to determine liability for trademark infringement.”); Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426, 436 (9th Cir. 2017), cert. denied, 138 S. Ct. 1984 (2018) (“The slam-dunk evidence of a conceptually strong mark together with the use of identical marks on identical goods is difficult to surmount.”).

27

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under the Act of March 3, 1881, or the Act of February 20, 1905, shall be constructive notice of the registrant’s claim of ownership thereof.”). 105.

Plaintiff alleges on information and belief that Defendants had actual knowledge

of Plaintiff’s registration(s) and/or use of the EVERMORE Trademark prior to December 10, 2020. 106.

The Court in Sally Beauty states: “[p]roof that a defendant chose a mark with the

intent of copying the plaintiff's mark may, standing alone, justify an inference of likelihood of confusion.” Sally Beauty Co., Inc., 304 F. 3d at 973. “One who adopts a mark similar to another already established in the marketplace does so at his peril, because the court presumes that he can accomplish his purpose: that is, that the public will be deceived. All doubts must be resolved against him.” Id. 107.

The numerous similarities between Evermore’s and Defendants’ use of the

EVERMORE Trademark point to actual knowledge and copying by Defendants. Those similarities include: a. Copying Evermore’s unique description (i.e., “escapism,” “epic tales,” etc.); b. Misappropriating multiple elements from the Evermore album cover art in the willow music video (i.e., the prominent roots, the opening in the trunk, the purple leaves, etc.); and c. Covering each item offered by Evermore, including oddly specific items, in trademark applications including the EVERMORE Trademark (i.e., “ornamental cloth patches”42 “three-dimensional plastic ornaments,”43 etc.).

42 43

Trademark Application Serial No. 90/371,763. Trademark Application Serial No. 90/371,730.

28

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108.

As a result of Defendants’ constructive knowledge and/or actual knowledge of the

EVERMORE Trademark Registrations and disregard of Plaintiff’s already established rights, the second factor weighs in Plaintiff’s favor. 109.

With regard to the third factor, there is evidence of actual confusion, including (1)

inquiries from guests at Evermore Park regarding the Evermore Album, (2) substantial fluctuations in Evermore’s web traffic on the day the Evermore Album was released, and (3) explicit associations by social media users between Taylor Swift and Evermore. 110.

Evidence of actual confusion “is not necessary for a finding of likelihood of

confusion, but it bears on the inquiry and is particularly potent.” Stone Creek, Inc., 875 F.3d at 433. See also Heartland Animal Clinic, P.A. v. Heartland SPCA Animal Medical Clinic, LLC, 861 F. Supp.2d 1293 (D. Kan. 2012), aff’d, 503 Fed. Appx. 616 (10th Cir. 2012) (granting preliminary injunction and finding timing of dozens of confused customers calling plaintiff just after defendant began heavy advertising campaign “strong” evidence of likely confusion). The currently available evidence of actual confusion weighs strongly in Plaintiff’s favor. 111.

With regard to the fourth factor, both parties offer clothing and recorded music

under the EVERMORE Trademark. 112.

Evermore offers “live visual and audio performances by an actor” under the

EVERMORE Trademark, and Taylor Swift is likely to begin offering “live visual and audio performances by an actor” under the EVERMORE Trademark to promote the Evermore album. 113.

Both parties focus their marketing on the Internet, including through the use of

social media.

29

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114.

Both parties offer many of the same goods and services and use the same channels

to market their respective goods and services, and, accordingly, the fourth factor weighs in Plaintiff’s favor. 115.

With regard to the fifth factor, it is well established that “the price level of the

goods or services is an important factor in determining the amount of care the reasonably prudent buyer will use.” MCCARTHY at § 23:95. 116.

The cost of the clothing and music sold by both parties under the EVERMORE

Trademark is relatively low, and none of the recognized classes of specialized consumers are relevant, and, accordingly, the fifth factor either weighs in Plaintiff’s favor as the senior user44 or is neutral. 117.

With regard to the sixth factor, Plaintiff’s EVERMORE Trademark is an arbitrary

trademark because it neither suggests nor describes any ingredient, quality, or characteristic of Plaintiff’s goods or services. 118.

Plaintiff’s EVERMORE Trademark has been extensively promoted and has been

featured in promotions that have garnered more than 25,000,000 views online. 119.

Plaintiff has welcomed 142,784 guests to Evermore Park. Exhibit A, Dec. of Ken

Bretschneider at ¶ 4. 120.

Plaintiff has expended $635,421 in advertising and promoting the EVERMORE

Trademark, in addition to Plaintiff’s expenditure of $300,000 to purchase the domain name EVERMORE.COM.

44

McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126, 1137 (2d Cir. 1979) (“In some cases, of course, as where the products are identical and the marks are identical, the sophistication of buyers cannot be relied upon to prevent confusion.”).

30

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121.

The combination of Plaintiff’s efforts to promote the EVERMORE Trademark

and the inherent distinctiveness of the EVERMORE Trademark establish that the EVERMORE Trademark is strong, and, accordingly, the sixth factor weighs in Plaintiff’s favor.45 122.

By committing the acts alleged herein, Defendants have intentionally, knowingly,

and willfully infringed Plaintiff’s EVERMORE Trademark. 123.

Plaintiff has been irreparably harmed in its business as a result of Defendants’

infringement. 124.

Plaintiff has lost control over its reputation as a result of Defendants’ actions.

125.

Defendants’ use of explicit lyrics and marketing of goods using vulgar terms (e.g.,

the “fancy shit” mug) are inconsistent with Plaintiff’s use of the EVERMORE Trademark and marketing efforts. 126.

Plaintiff will continue to suffer irreparable harm unless Defendants are restrained

from infringing Plaintiff’s EVERMORE Trademark. 127.

As a result of Defendants’ intentional, knowing, and willful counterfeiting of

Plaintiff’s EVERMORE Trademark in connection with clothing, Plaintiff is entitled to statutory damages of “not more than $2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.” 15 U.S.C. § 1117(c)(2). 128.

Alternatively, Evermore is entitled to damages, treble damages, statutory

damages, and the equitable remedy of an accounting for and a disgorgement of all revenues

45

Defendants’ arguments that the EVERMORE Trademark is weak is both self-serving and inadequate under established precedent. MCCARTHY at § 11:76 (“Even weak marks are entitled to protection against subsequent registration or use by another for a very closely similar mark on closely competitive goods or services. As the predecessor court to the Federal Circuit remarked: ‘Confusion is confusion. The likelihood thereof is to be avoided, as much between ‘weak’ marks as between ‘strong’ marks, or as between a ‘weak’ and a ‘strong’ mark.”).

31

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and/or profits wrongfully derived by Defendants from their infringement of the EVERMORE Trademark pursuant to 15 U.S.C. § 1117(a). SECOND CLAIM FOR RELIEF (Common Law Trademark Infringement) 129.

The allegations set forth above are incorporated herein by this reference.

130.

Plaintiff and its predecessors in interest have used the EVERMORE Trademark in

connection with Evermore’s goods and services in U.S. commerce since at least April 17, 2014. 131.

As a result of the continued use and sale by Evermore of products and services

under the EVERMORE Trademark and as a result of the experience, care, and service of Plaintiff, EVERMORE has become associated with Plaintiff’s products and services. 132.

Among other things, Plaintiff has offered recorded music in digital format under

the EVERMORE Trademark. 133.

Plaintiff has distributed its music recordings through the same outlet (i.e., Apple

Media) as music offered by Taylor Swift under the EVERMORE Trademark. 134.

Defendants have announced their intent to adopt the EVERMORE Trademark or

confusingly similar variations thereof, in connection with other goods offered by Plaintiff, including “ornamental cloth patches,”46 “three-dimensional plastic ornaments,”47 “purses,” “allpurpose carrying bags,” “key wallets,” and “key pouches.”48 135.

Plaintiff adopted and used the EVERMORE Trademark prior to Defendants’

adoption and use of the EVERMORE Trademark.

46

Trademark Application Serial No. 90/371,763. Trademark Application Serial No. 90/371,730. 48 Trademark Application Serial No. 90/371,724. 47

32

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136.

Defendants’ acts are likely to cause, and have caused and will continue to cause,

confusion as to the source or sponsorship of Defendants’ advertisements, products, and services. 137.

Defendants’ acts constitute willful infringement of Plaintiff’s exclusive rights in

the EVERMORE Trademark in violation of the common law. 138.

By reason of Defendants’ actions, Plaintiff has suffered irreparable harm. Unless

Defendants are restrained from further infringement of the EVERMORE Trademark, Plaintiff will continue to suffer irreparable harm. 139.

Plaintiff has no remedy at law that will adequately compensate for the irreparable

harm it will suffer if Defendants’ conduct is allowed to continue. 140.

As a consequence of Defendants’ actions, Plaintiff has suffered damages in an

amount to be proven at trial. THIRD CLAIM FOR RELIEF (Unfair Competition under Utah Code Ann. § 13-5a-102) 141.

The allegations set forth above are incorporated herein by this reference.

142.

Plaintiff and its predecessors in interest have used the EVERMORE Trademark in

connection with Evermore’s goods and services in U.S. commerce since at least April 17, 2014. 143.

Subsequent to Plaintiff’s adoption and use of the EVERMORE Trademark,

Defendants began using the EVERMORE Trademark to promote their goods and services. 144.

Defendants’ conduct has caused actual confusion in the marketplace regarding the

relationship between Plaintiff and Defendants and the source, origin, and sponsorship of Defendants’ goods and services. 145.

Defendants engaged in unfair competition in commerce under Utah statutory law,

resulting in damages to Plaintiff, including the loss of goodwill and reputation, and, unless enjoined, will cause further irreparable injury, for which Plaintiff has no adequate remedy at law.

33

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146.

Plaintiff is entitled to judgment against Defendants for recovery of its damages,

costs, and attorney fees, and if the Court determines that the circumstances are appropriate, punitive damages, pursuant to Utah Code Ann. § 13-5a-103. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests:

A.

That Defendants, and all of their agents, servants, employees, and attorneys, and all other persons in active concert or participation with them who receive actual notice of the injunction, be temporarily, preliminarily, and permanently enjoined from, without permission from Plaintiff:

1. using the EVERMORE Trademark, any colorable imitations thereof, or any marks confusingly similar thereto, and

2. otherwise deceptively or unfairly competing with Plaintiff; B.

That Plaintiff be awarded statutory damages in the amount of $2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed pursuant to 15 U.S.C. § 1117(c)(2);

C.

Alternatively, that Plaintiff be awarded the equitable remedy of an accounting for and a disgorgement of all revenues and/or profits wrongfully derived by Defendants from their infringement of the EVERMORE Trademark;

D.

That Plaintiff be awarded its costs and fees incurred in this action under 15 U.S.C. § 1117(a)-(b);

E.

Alternatively, that Plaintiff be awarded its costs and fees incurred in this action under Utah Code Ann. § 13-5a-103; and

F.

That Plaintiff be awarded such other further relief to which it may be entitled as a

34

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matter of law or equity, or which the Court determines to be just and proper. Dated: February 2, 2021 JARED L. CHERRY PHILLIPS WINCHESTER By:

/s/ Jared L. Cherry Attorney for Plaintiff

35

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CODY Z. WINCHESTER (7197) JARED L. CHERRY (11534) PHILLIPS WINCHESTER, LLC 4001 South 700 East, Suite 500 Salt Lake City, Utah 84107 Tel: (801) 935-4932 Fax: (801) 935-4936 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION EVERMORE PARK, LLC, a Delaware Limited Liability Company, Plaintiff,

Civil Action No.: 2:21-cv-00069

v.

Honorable: Magistrate Judge Daphne A. Oberg

TAYLOR SWIFT, an individual, TAS RIGHTS MANAGEMENT, LLC, a Tennessee Limited Liability Company, and TAYLOR NATION, LLC, a Tennessee Limited Liability Company, Defendants. DECLARATION OF KEN BRETSCHNEIDER I, Ken Bretschneider, declare under penalty of perjury of the laws of the United States that the following is true and correct and that I have personal knowledge of the following facts: 1.

I am the chief executive officer of Evermore Park, LLC (“Evermore”).

2.

Evermore has invested approximately $37,000,000 into the creation and

promotion of Evermore Park and the EVERMORE trademarks. 3. includes:

Evermore’s investment in developing and promoting the EVERMORE trademark

Case 2:21-cv-00069-DAO Document 2-1 Filed 02/02/21 PageID.38 Page 2 of 5

(a) Expending $406,835.00 in advertising and promoting the EVERMORE Trademark;

(b) Purchasing the domain name EVERMORE.COM at a cost of $300,000.00; and

(c) Expending $228,587 in direct labor costs for advertising and promoting the EVERMORE Trademark. 4.

To date, Evermore Park has provided its entertainment services to 142,784 guests

since it opened its doors in 2018. 5.

Evermore offers clothing items bearing the EVERMORE trademark. Some

examples of clothing items bearing the EVERMORE trademark are shown below. EVERMORE Hoodie

EVERMORE T-Shirt

Case 2:21-cv-00069-DAO Document 2-1 Filed 02/02/21 PageID.39 Page 3 of 5

EVERMORE Hat

6.

Evermore also uses the EVERMORE trademark in connection with goods and

services in addition to those specifically enumerated in Evermore’s Trademark Registrations. 7.

For example, Evermore commissioned the creation of two original music scores

that Evermore sells under the EVERMORE trademark through a variety of outlets, such as Apple Music.1 The album artwork for the scores features the EVERMORE trademark, as shown below.

1

See Evermore Park, Vol. 1: The Soundtrack of Magical Lore (Original Score), available at https://music.apple.com/us/album/evermore-park-vol-1-soundtrack-magical-loreoriginal/1442138785?uo=4&app=music; Evermore Park, Vol. 2: The Soundtrack of Cursed Lore (Original Score), available at https://music.apple.com/us/album/evermore-park-vol-2soundtrack-cursed-lore-original/1438239366.

Case 2:21-cv-00069-DAO Document 2-1 Filed 02/02/21 PageID.40 Page 4 of 5

8.

Evermore also uses the EVERMORE trademark in connection with keychains,

commemorative coins, postcards, and pins, as shown below.

Case 2:21-cv-00069-DAO Document 2-1 Filed 02/02/21 PageID.41 Page 5 of 5

9.

Prior to December 11, 2020, the first page of a search of Google.com for

“Evermore” produced a majority of results with content relating to Evermore, including Evermore’s social media accounts, news articles about Evermore, and reviews of Evermore Park. Dated: February 2, 2021

Ken Bretschneider

Case 2:21-cv-00069-DAO Document 2-2 Filed 02/02/21 PageID.42 Page 1 of 8

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Case 2:21-cv-00069-DAO Document 2-2 Filed 02/02/21 PageID.44 Page 3 of 8

Reg. No. 5,329,899 Registered Nov. 07, 2017 Int. Cl.: 41 Service Mark Principal Register

KPB, LLC (UTAH LIMITED LIABILITY COMPANY) 126 South 140 West Lindon, UTAH 84042 CLASS 41: Providing Halloween themed park services FIRST USE 10-24-2014; IN COMMERCE 10-24-2014 THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PARTICULAR FONT STYLE, SIZE OR COLOR SER. NO. 85-933,243, FILED 05-15-2013

Case 2:21-cv-00069-DAO Document 2-2 Filed 02/02/21 PageID.45 Page 4 of 8 REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS. Requirements in the First Ten Years* What and When to File: First Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th years after the registration date. See 15 U.S.C. §§1058, 1141k. If the declaration is accepted, the registration will continue in force for the remainder of the ten-year period, calculated from the registration date, unless cancelled by an order of the Commissioner for Trademarks or a federal court. Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.

Requirements in Successive Ten-Year Periods* What and When to File: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date.*

Grace Period Filings* The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee. *ATTENTION MADRID PROTOCOL REGISTRANTS: The holder of an international registration with an extension of protection to the United States under the Madrid Protocol must timely file the Declarations of Use (or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO). The time periods for filing are based on the U.S. registration date (not the international registration date). The deadlines and grace periods for the Declarations of Use (or Excusable Nonuse) are identical to those for nationally issued registrations. See 15 U.S.C. §§1058, 1141k. However, owners of international registrations do not file renewal applications at the USPTO. Instead, the holder must file a renewal of the underlying international registration at the International Bureau of the World Intellectual Property Organization, under Article 7 of the Madrid Protocol, before the expiration of each ten-year term of protection, calculated from the date of the international registration. See 15 U.S.C. §1141j. For more information and renewal forms for the international registration, see http://www.wipo.int/madrid/en/. NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the USPTO website for further information. With the exception of renewal applications for registered extensions of protection, you can file the registration maintenance documents referenced above online at h ttp://www.uspto.gov. NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark owners/holders who authorize e-mail communication and maintain a current e-mail address with the USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms available at http://www.uspto.gov.

Page: 2 of 2 / RN # 5329899

Case 2:21-cv-00069-DAO Document 2-2 Filed 02/02/21 PageID.46 Page 5 of 8

Reg. No. 5,617,849 Registered Nov. 27, 2018 Int. Cl.: 25, 41 Service Mark

EVERMORE PARK, LLC (DELAWARE LIMITED LIABILITY COMPANY) 922 South State Street Pleasant Grove, UTAH 84062 CLASS 25: Coats; Dresses; Hats; Jackets; Pants; Shorts; Socks; Sweaters FIRST USE 9-4-2018; IN COMMERCE 9-4-2018 CLASS 41: Amusement parks

Trademark Principal Register

FIRST USE 9-4-2018; IN COMMERCE 9-4-2018 The mark consists of the word "EVERMORE" in a stylized font. SER. NO. 86-984,171, FILED 09-09-2014

Case 2:21-cv-00069-DAO Document 2-2 Filed 02/02/21 PageID.47 Page 6 of 8 REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS. Requirements in the First Ten Years* What and When to File: First Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th years after the registration date. See 15 U.S.C. §§1058, 1141k. If the declaration is accepted, the registration will continue in force for the remainder of the ten-year period, calculated from the registration date, unless cancelled by an order of the Commissioner for Trademarks or a federal court. Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.

Requirements in Successive Ten-Year Periods* What and When to File: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date.*

Grace Period Filings* The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee. *ATTENTION MADRID PROTOCOL REGISTRANTS: The holder of an international registration with an extension of protection to the United States under the Madrid Protocol must timely file the Declarations of Use (or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO). The time periods for filing are based on the U.S. registration date (not the international registration date). The deadlines and grace periods for the Declarations of Use (or Excusable Nonuse) are identical to those for nationally issued registrations. See 15 U.S.C. §§1058, 1141k. However, owners of international registrations do not file renewal applications at the USPTO. Instead, the holder must file a renewal of the underlying international registration at the International Bureau of the World Intellectual Property Organization, under Article 7 of the Madrid Protocol, before the expiration of each ten-year term of protection, calculated from the date of the international registration. See 15 U.S.C. §1141j. For more information and renewal forms for the international registration, see http://www.wipo.int/madrid/en/. NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the USPTO website for further information. With the exception of renewal applications for registered extensions of protection, you can file the registration maintenance documents referenced above online at h ttp://www.uspto.gov. NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark owners/holders who authorize e-mail communication and maintain a current e-mail address with the USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms available at http://www.uspto.gov.

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Reg. No. 5,597,168 Registered Oct. 30, 2018 Int. Cl.: 41 Service Mark Principal Register

EVERMORE PARK, LLC (UNITED STATES LIMITED LIABILITY COMPANY) 922 South State Street Pleasant Grove, UTAH 84062 CLASS 41: Entertainment services in the nature of live visual and audio performances by an actor; Entertainment services in the nature of augmented reality attractions; Providing theme park services FIRST USE 9-3-2018; IN COMMERCE 9-3-2018 THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PARTICULAR FONT STYLE, SIZE OR COLOR SER. NO. 87-636,766, FILED 10-06-2017

Case 2:21-cv-00069-DAO Document 2-2 Filed 02/02/21 PageID.49 Page 8 of 8 REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS. Requirements in the First Ten Years* What and When to File: First Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th years after the registration date. See 15 U.S.C. §§1058, 1141k. If the declaration is accepted, the registration will continue in force for the remainder of the ten-year period, calculated from the registration date, unless cancelled by an order of the Commissioner for Trademarks or a federal court. Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.

Requirements in Successive Ten-Year Periods* What and When to File: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date.*

Grace Period Filings* The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee. *ATTENTION MADRID PROTOCOL REGISTRANTS: The holder of an international registration with an extension of protection to the United States under the Madrid Protocol must timely file the Declarations of Use (or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO). The time periods for filing are based on the U.S. registration date (not the international registration date). The deadlines and grace periods for the Declarations of Use (or Excusable Nonuse) are identical to those for nationally issued registrations. See 15 U.S.C. §§1058, 1141k. However, owners of international registrations do not file renewal applications at the USPTO. Instead, the holder must file a renewal of the underlying international registration at the International Bureau of the World Intellectual Property Organization, under Article 7 of the Madrid Protocol, before the expiration of each ten-year term of protection, calculated from the date of the international registration. See 15 U.S.C. §1141j. For more information and renewal forms for the international registration, see http://www.wipo.int/madrid/en/. NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the USPTO website for further information. With the exception of renewal applications for registered extensions of protection, you can file the registration maintenance documents referenced above online at h ttp://www.uspto.gov. NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark owners/holders who authorize e-mail communication and maintain a current e-mail address with the USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms available at http://www.uspto.gov.

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To put it plainly, we just couldn't stop writing songs. To try and put it more poetically, it feels like we were stand­ ing on the edge of the folklorian woods and had a choice: to turn and go back or to travel further into the forest of this music. We chose to wander deeper in and my collaborators and I are proud to announce that my 9th studio album and folklore's sister record is here. It's called evermore. I've never done chis before. In the past I've always created albums as one-off eras and moved onto planning the next one as soon as an album was released. There was something different �ith folklore. In making it, I felt less like I was departing and more like I was returning. I loved che escapism I found in these imaginary/not imaginary tales. I loved the ways you welcomed the dreams capes and tragedies and epic tales of love lost and found. So I just kept writing chem. And I loved creating these songs with Aaron Dessner,Jack Antonoff, WB, and Justin Vernon. We've also welcomed some new (and longtime) friends to our 11111sical ldtchen cable this time around... Before I knew it there were 17 tales, some of which are mirrored or intersecting with one another. The one about two young con artists who fall in love while hanging out at fancy resorts trying to score rich romantic beneficia­ ries. The one where longtime college sweethearts had very different plans for the same night, one to end it and one who brought a ring. Dorothea, the girl who left her small town to chase down Hollywood dreams - and what hap­ pens when she comes back for the holidays and rediscovers an old flame. The 'unhappily ever after' anthology of marriages gone bad that includes infidelity, ambivalent toleration, and even murder. The most righteous motive, to avenge the fallen. The realization that maybe the only path to healing is to wish happiness on the one who took it away from you. One starring my grandmother, Marjorie, who still visits me sometimes...if only in my dreams. I wanted to surprise you with this the week of my 31st birthday. You've all been so caring, supportive and thought­ ful on my birthdays and so this time I wanted to give you something! I also know this holiday season will be a lonely one for most of us and if there are any of you out there who turn to music to cope with missing loved ones the way I do, this is for you. I have no idea what will come next. I have no idea about a lot of things these days and so I've clung to the one thing that keeps me connected to you all. That thing always has and always will be music. And may it continue, evermore.

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P HILLIPS W INCHESTER

JARED L. CHERRY Phone (801) 935-4932 [email protected]

ATTORNEYS AT LAW

December 18, 2020 VIA FEDERAL EXPRESS (Tracking No. 772416080495) Taylor A. Swift TAS Rights Management, LLC Taylor Nation, LLC 242 West Main Street, PMB 412 Hendersonville, TN 37075 VIA EMAIL ([email protected]) Taylor A. Swift TAS Rights Management, LLC Taylor Nation LLC c/o Natalya L. Rose, Esq. Rose IP Law PLLC 4235 Hillsboro Pike, Suite 300 Nashville, TN 37215 VIA FACSIMILE (202-344-8300) and VIA EMAIL ([email protected]) Taylor A. Swift TAS Rights Management, LLC Taylor Nation LLC c/o Rebecca Liebowitz, Esq. Venable LLP P.O. Box 34385 District of Columbia 20043 Re:

Infringement of EVERMORE® Trademark

Dear Ms. Swift: This law firm represents Evermore Park, LLC (“Evermore”) in trademark matters. Evermore has asked us to contact you regarding your use of the EVERMORE trademark. Evermore operates an immersive experience theme park in which performers who portray fantasy characters are the main attraction. Evermore’s immersive experience includes a wide variety of actors and musicians that create a world of fantasy in which guests interact with

4001 SOUTH 700 EAST, SUITE 500 | SALT LAKE CITY, UT 84107 WWW.PHILLIPSWINCHESTER.COM

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performers and become a part of the world of Evermore. Evermore has attracted wide recognition for its innovative and unique approach. For example, the LA Times called Evermore Park the “future of theme parks,”1 Time Magazine named Evermore Park one of the World’s Coolest Places in 2019,2 and Evermore’s CEO was named one of the top theme park influencers.3 Evermore has attracted interest from a major entertainment studio, which is in discussions with Evermore about the creation of other forms of entertainment content such as; TV shows, video games, card/board games, books, AR and VR experiences, music, etc., based on the world of Evermore. Evermore’s unique and innovative form of entertainment centers around actors and musicians who create the fantasy world of Evermore Park. Evermore has invested tens of millions of dollars into the creation and promotion of Evermore Park and the EVERMORE trademark. Much of this investment has come from Mr. Ken Bretschneider, Evermore’s CEO, for whom Evermore has been a life-long dream. As Mr. Bretschneider explained in an interview, “I grew up in a rough situation, with a very abusive father, but I had the wonderful opportunity of being around other people who were mostly artists. They helped me escape out of my negative world and embrace a positive one. That really meant a lot to me and set an important tone through my entire life.”4 Beginning in 2008, Mr. Bretschneider began hosting a Halloween event for his community at his home that grew each year until, in 2013, 11,000 people visited Mr. Bretschneider’s home. This was the beginning of Evermore, which hosted its first Halloween event in 2014 and began construction of Evermore Park in 2017. In addition to the live performances by actors and musicians at Evermore Park, Evermore offers recorded music and merchandise under the EVERMORE trademark. Evermore commissioned the creation of original musical scores for use in the park, some of which are also sold under the EVERMORE trademark through a variety of outlets, such as Apple Music.5 Evermore’s album cover art is reproduced below for your reference. Evermore’s musical sound recordings compete directly with your recently released Evermore album.6 1

Exhibit A, Westworld, Ho! Inside Evermore, where the future of theme parks is not about rides but play, LA Times, Nov. 9, 2018. Available at https://www.latimes.com/entertainment/herocomplex/la-et-ms-evermore-futureof-theme-parks-20181109-story.html 2 https://time.com/collection/worlds-coolest-places-2019/5736007/evermore-park-pleasant-grove-utah/ 3 https://blooloop.com/blooloop-influencers/2020/ken-bretschneider-evermore-2020/ 4 See https://www.cladglobal.com/architecture_design_features?codeid=33232 5 See Evermore Park, Vol. 1: The Soundtrack of Magical Lore (Original Score), available at: https://music.apple.com/us/album/evermore-park-vol-1-soundtrack-magical-loreoriginal/1442138785?uo=4&app=music; Evermore Park, Vol. 2: The Soundtrack of Cursed Lore (Original Score), available at https://music.apple.com/us/album/evermore-park-vol-2-soundtrack-cursed-lore-original/1438239366 6 Evermore is aware that you filed eight trademark applications on December 10, 2020, for TAYLOR SWIFT EVERMORE ALBUM, including trademark serial no. 90/371,709 that recites: “Musical sound recordings; Series of musical sound recordings; Audio recordings featuring music and musical entertainment; Downloadable audio recordings featuring music and musical entertainment; Downloadable musical sound recordings; Digital music downloadable from the Internet; Downloadable music files; Digital media, namely, downloadable audio files featuring music and musical entertainment….”

PHILLIPS WINCHESTER

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Evermore has used the EVERMORE trademark in commerce since 2014 and is the owner of the following trademark registrations. Evermore’s Trademark Registrations Trademark

Registration No.

Goods and Services

EVERMORE

4,720,740

Int.’l Class 25: Coats; Dresses; Hats; Jackets; Pants; Shirts; Shoes; Shorts; Socks; Sweaters.

EVERMORE

5,329,899

Int.’l Class 41: Providing Halloween themed park services.

5,617,849

Int.’l Class 25: Coats; Dresses; Hats; Jackets; Pants; Shorts; Socks; Sweaters.

5,597,168

Int.’l Class 41: Entertainment services in the nature of live visual and audio performances by an actor; Entertainment services in the nature of augmented reality attractions; Providing theme park services.

EVERMORE

Your use of the EVERMORE trademark infringes on Evermore’s trademark rights and has resulted in actual confusion. Evermore has received several inquiries regarding your affiliation with Evermore and your use of the EVERMORE trademark.

PHILLIPS WINCHESTER

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In addition to the examples noted above, Evermore’s web traffic and digital marketing have been negatively impacted since your adoption of the EVERMORE trademark. During the week of December 6-12, 2020, Evermore’s website traffic experienced a dramatic departure from typical levels. This deviation speaks to the confusion caused by your announcement of your adoption of the EVERMORE trademark during this period. Prior to your adoption of the EVERMORE trademark, Evermore’s website and news related to Evermore Park placed at or near the top of search results for “Evermore.” Recently, however, Evermore’s online presence has been overwhelmed by content related to your new album. As materials related to your use of the EVERMORE trademark have grown, Evermore’s web traffic has fallen dramatically. We are also aware that you are currently offering merchandise for sale under the EVERMORE trademark7 and that your pending trademark applications filed with the United States Patent and Trademark Office state your intent to dramatically expand your use of the EVERMORE trademark. Evermore already offers goods bearing the EVERMORE trademark, as shown in the following screen capture from Evermore’s website8 at taken on December 16, 2020.

7

See “evermore merch” pages available at: https://store.taylorswift.com/collections/evermore-merch?page=1 https://store.taylorswift.com/collections/evermore-merch?page=2, https://store.taylorswift.com/collections/evermore-merch?page=3, https://store.taylorswift.com/collections/evermore-merch?page=4, and https://store.taylorswift.com/collections/evermore-merch?page=5. 8 See https://www.evermore.com/store

PHILLIPS WINCHESTER

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The trademark applications you have filed encompass each category of product currently offered by Evermore, and your website offers clothing bearing the EVERMORE trademark. More specifically, your trademark applications recite “ornamental cloth patches,”9 “threedimensional plastic ornaments,” 10 “purses,” “all-purpose carrying bags,” “key wallets,” and “key pouches.”11 Based on the foregoing and as a fellow performer and musician, Evermore hopes that you will understand why Evermore requests that you cease and desist from your use of the EVERMORE trademark. Evermore is open to discussing reasonable terms for your 9

Trademark Application Serial No. 90/371,763 Trademark Application Serial No. 90/371,730 11 Trademark Application Serial No. 90/371,724 10

PHILLIPS WINCHESTER

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discontinuation of the EVERMORE trademark and abandonment of your pending trademark applications including the EVERMORE trademark. Please contact me by no later than December 30, 2020, to discuss the terms you propose. Should you have any questions regarding Evermore’s position in this matter, please feel free to contact me. This letter is without prejudice to all rights of Evermore. Sincerely,

Jared L. Cherry

PHILLIPS WINCHESTER

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Exhibit A

PHILLIPS WINCHESTER

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Exhibit B

PHILLIPS WINCHESTER

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Exhibit C

PHILLIPS WINCHESTER

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CODY Z. WINCHESTER (7197) JARED L. CHERRY (11534) PHILLIPS WINCHESTER, LLC 4001 South 700 East, Suite 500 Salt Lake City, Utah 84107 Tel: (801) 935-4932 Fax: (801) 935-4936 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION EVERMORE PARK, LLC, a Delaware Limited Liability Company, Plaintiff,

Civil Action No.: 2:21-cv-00069

v.

Honorable: Magistrate Judge Daphne A. Oberg

TAYLOR SWIFT, an individual, TAS RIGHTS MANAGEMENT, LLC, a Tennessee Limited Liability Company, and TAYLOR NATION, LLC, a Tennessee Limited Liability Company, Defendants. DECLARATION OF ANDREA MEASOM I, Andrea Measom, declare under penalty of perjury of the laws of the United States that the following is true and correct and that I have personal knowledge of the following facts: 1.

I am the director of human resources of Evermore Park, LLC (“Evermore”).

2.

After December 10, 2020, guests at Evermore Park asked me whether the

Evermore Album was the result of a collaboration between Evermore and Taylor Swift or some other type of relationship.

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CODY Z. WINCHESTER (7197) JARED L. CHERRY (11534) PHILLIPS WINCHESTER, LLC 4001 South 700 East, Suite 500 Salt Lake City, Utah 84107 Tel: (801) 935-4932 Fax: (801) 935-4936 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION EVERMORE PARK, LLC, a Delaware Limited Liability Company, Plaintiff,

Civil Action No.: 2:21-cv-00069

v.

Honorable: Magistrate Judge Daphne A. Oberg

TAYLOR SWIFT, an individual, TAS RIGHTS MANAGEMENT, LLC, a Tennessee Limited Liability Company, and TAYLOR NATION, LLC, a Tennessee Limited Liability Company, Defendants. DECLARATION OF JAREN TOLMAN I, Jaren Tolman, declare under penalty of perjury of the laws of the United States that the following is true and correct and that I have personal knowledge of the following facts: 1.

I am the Chief Technology Officer of Evermore Park, LLC (“Evermore”).

2.

Evermore uses Google Analytics to track various metrics related to the website

available at evermore.com.

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3.

On the day that Taylor Swift announced the Evermore Album, December 10,

2020, web traffic on Evermore Park’s website, www.evermore.com, spiked dramatically, as shown in the following screen capture from the website analytics software used by Evermore.

4.

True and correct copies of screen captures from Google Analytics at various

times surrounding December 10, 2020, are attached as Exhibit G to Evermore’s complaint. 5.

Evermore did not make any changes to its online marketing efforts during this

period that would explain these changes. Dated: February 2, 2021 Jaren Tolman

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December 29, 2020

J. Douglas Baldridge T 202.344.4703 F 202.344.8300 [email protected]

Via Electronic Mail and Federal Express Jared L. Cherry Phillips Winchester 4001 S 700 E. Suite 500 Salt Lake City, Utah 84107 [email protected] Re:

Response to Your December 18, 2020 Letter

Dear Mr. Cherry: As you know, Venable LLP represents Ms. Taylor Swift, TAS Rights Management, LLC and Taylor Nation LLC (collectively, the “Swift Parties”). I am writing in response to your December 18, 2020 letter alleging baseless claims of trademark infringement associated with the release of Ms. Swift’s most recent album. Put simply, the Swift Parties have not infringed your client’s trademark, and it is inconceivable that there is any likelihood of confusion between your client’s theme park and related products and Ms. Swift’s music and related products. Your letter states that the Swift Parties’ “use of the EVERMORE trademark infringes on Evermore’s trademark rights and has resulted in actual confusion.” We disagree. In the Tenth Circuit, six factors are relevant to determining a likelihood of confusion. Those factors are: (1) the degree of similarity between the marks; (2) the intent of the alleged infringer in using the mark; (3) evidence of actual confusion; (4) similarity of products and manner of marketing; (5) the degree of care likely to be exercised by purchasers; and (6) the strength or weakness of the mark. Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002) (citing King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089-90 (10th Cir. 1999). An examination of these factors demonstrates the unfounded nature of your claim. First, the obvious dissimilarity of the marks as to the appearance, sound, connotation, and commercial impression eliminates any potential consumer confusion. Your client’s alleged trademark “EVERMORE” is clearly dissimilar from “TAYLOR SWIFT EVERMORE ALBUM.”1 It is a well understood principle that additions or deletions to marks are sufficient to

1

While Ms. Swift’s album is called “evermore,” as your letter acknowledges, the trademark applications are for TAYLOR SWIFT EVERMORE ALBUM. This is because to the extent the Swift

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December 29, 2020 Page 2 avoid a likelihood of confusion if the marks in their entireties convey significantly different commercial impressions. See, e.g., Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 1356, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1044-45 (TTAB 2010). Your client is well aware of this principle, as it has previously argued it to the U.S. Patent and Trademark Office. In fact, when arguing that EVERMORE could peacefully co-exist with DR. EVERMOR—the owner of another trademark and the operator of a similar park—for identical goods and services, your client argued: [T]he title “Dr.” is applied to a person, thus communicating to the public that “Dr. Evermor” refers to an individual. This fact is confirmed by the “Name/Portrait Statement” included in the Cited Mark. Specifically, the Cited Mark indicates that “The likeness (or, “portrait”) in the mark identifies a living individual whose consent is of record.” In this particular context, the public would correctly assume that Dr. Evermor is the proprietor of the goods bearing his name. For at least this reason, the Applicant respectfully asserts that there is no likelihood of confusion between the Cited Mark and the Applicant’s mark.2 Here, the addition of TAYLOR SWIFT . . . ALBUM clearly distinguishes the Swift Parties’ products and services from any products or services sold by your client, even more so than the ambiguous word “DR.” did in the goods and services offered under the DR. EVERMOR mark— a mark your client asserted could peacefully co-exist with its EVERMORE mark in USPTO submissions. Your client cannot possibly reconcile a belief of no likelihood of confusion between EVERMORE and DR. EVERMOR used on identical goods and services, with the assertion that there is a likelihood of confusion between EVERMORE and TAYLOR SWIFT EVERMORE ALBUM on entirely different goods and services. Further, in addition to differences between the marks themselves and the goods and services they cover, the Swift Parties’ promotion of Ms. Swift’s new album conveys a significantly different commercial impression from that of your client’s amusement park. Among other things, the Swift Parties have consistently stylized references to the new album in a way that is entirely distinct from your client’s branding, including through their use of the all-lowercase lettering and font that has become widely associated with Ms. Swift’s projects throughout 2020.3 Moreover, the Swift Parties consistently use the name Parties intend to use a trademark on merchandise, they intend to use the trademark TAYLOR SWIFT EVERMORE ALBUM. 2

See Office Action Responses dated March 10, 2014 submitted in connection with Serial Numbers 85933153 and 85933243 (attached as Exhibit A), among other similar filings. 3

Indeed, a part of the Swift Parties’ brand identity in recent years has been the use of specific fonts, color palettes, and other stylized features to identify each of Ms. Swift’s albums or “eras,” including on all related album merchandise and marketing materials. This era-specific branding enables consumers to quickly associate the content with Ms. Swift’s projects, and not those of a third party.

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December 29, 2020 Page 3 “Taylor Swift” and/or images of Taylor Swift in close proximity to any promotion of the album and related merchandise. Whether in a vacuum or in the marketplace, these marks are plainly distinct. Second, you have not identified any evidence of actual confusion, likely because there is none. You make the conclusory statement that “Evermore’s web traffic and digital marketing have been negatively impacted since your adoption of the Evermore trademark” and claim that “[d]uring the week of December 6-12, 2020, [your client’s] website traffic experienced a dramatic departure from typical levels.” As a preliminary matter, a change in website traffic does not equate to trademark confusion. Furthermore, even if it did, any dramatic departure from typical levels that occurred from December 6 – December 9 are in no way attributable to the Swift Parties because Ms. Swift’s album name was not announced until December 10. Your attempt to fully impute an alleged decline in email traffic to Ms. Swift’s new album is similarly misguided given the reality of the industry-wide impacts COVID-19 has had on theme parks,4 particularly in winter months as temperatures decline and as case counts are soaring across the country. Lastly, and perhaps most importantly, your client’s social media posts belie this claim as they have intentionally traded off and taken advantage of this alleged attention in a transparent attempt to try to create an association between your client and ours.

4

Indeed, internet traffic for theme parks is down across the entire industry, a reality no doubt attributable to the ongoing global pandemic. As your client’s Facebook page makes clear: “The arts have been hit hard by COVID-19 and Evermore is no exception.” Evermore Park Facebook Post (August 25, 2020). The difficulties theme parks have experienced during COVID-19 predate, and obviously have nothing to do with, the release of Ms. Swift’s new album.

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December 29, 2020 Page 4

If anything, your client’s website traffic has actually increased as a result of the release of Ms. Swift’s recent album which, in turn, could only serve to enhance your client’s mark. Indeed, as your client writes “everyone online is talking about us.”5 Third, the products at issue and marketing methods could not be more dissimilar—further weighing against a finding of a likelihood of confusion. Insomuch as your letter did not provide any concrete evidence of your client’s trademark rights, our analysis will focus first on the USPTO records, then on purported common law rights. With respect to the USPTO records, your client’s registrations currently consist of clothing, as well as entertainment in the nature of acting services 5

To the extent you have any legitimate, admissible evidence of actual confusion, we invite you to share it with us. Additionally, we are aware of your client’s Facebook post stating (in response to the following post: “So @EvermorePark I see a marketing opportunity…..right? @taylorswift13 #evermorealbum ts #TaylorSwift ts”) “We reached out… and haven’t heard anything yet.” Our clients have no record of any such contact. Once again, an attempt by your client to try to market with the Swift Parties (and publicly informing consumers of this intent) belies the claim that your client is damaged or that there is any likelihood of confusion.

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December 29, 2020 Page 5 and amusement park services. Because your client has argued to the USPTO that these goods and services would be offered at a park located in Lindon, Utah (see Exhibit 1) and nothing in your letter contradicts this, we assume the same is true. The Swift Parties’ products and services bearing the TAYLOR SWIFT EVERMORE ALBUM mark do not, and will not, consist of those goods and services offered exclusively at a park. As such, the products at issue and marketing methods for them, with respect to the USPTO records, are different. With respect to any purported common law rights your client may have in EVERMORE on additional goods, your letter claims that “Evermore already offers goods bearing the EVERMORE trademark, as shown in the following screen capture,” however, you have provided no other evidence to support your client’s purported trademark rights in these items. In fact, from what we can determine on the screenshot, it is unclear what trademark rights, if any, your client has in the word EVERMORE for these products as the word EVERMORE only appears on, at most, two items—and one such use appears to be ornamental in nature rather than as a trademark to indicate the source of its clothing or to identify and distinguish its clothing from others. Your letter points to “in park exclusive items” including small dragon eggs, guild patches, and a small dragon mount and claims that items available on Ms. Swift’s website are similar. They are not. The “in park exclusive items” are not available for purchase online; they are only allegedly available to purchase “exclusively” at your client’s theme park6—a distribution channel that could not be more disassociated with my client’s mark. The “merch” available on Ms. Swift’s website related to her new album, on the other hand, is only available for purchase online—on a website that is clearly branded with Ms. Swift’s name, likeness and/or image. As such, there is simply no overlap in the marketing methods and channels of trade between our clients’ respective goods and services, and thus no potential for lost sales or actual confusion between them. Moreover, contrary to the assertion in your letter, the “merch” on Ms. Swift’s website only contains pictures of Ms. Swift or album lyrics and is not identified as an “evermore” collection. Even the URL where this merch is available makes no mention of “evermore”: https://store.taylorswift.com/?utm_campaign =nav&utm_medium=referral&utm_source=taylorswift.com.7 And, importantly, Ms. Swift’s

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To be clear, you have presented zero evidence that these “in park” items are actively being sold. As we are sure you understand, a screenshot of product images available exclusively at a physical location is not sufficient to show use of a mark, either at the USPTO or to establish trademark rights—this is especially true when the images do not show use of the mark, any information about how or where to purchase the items, etc. 7

As to the URLs containing links to Ms. Swift’s store with “evermore” included in the web address, these pages were merely for backend inventory and were never intended to be live or publicly available. They were only available for a short period of time due to a mistake by one of the vendors in charge of maintaining the website. They are no longer publicly available in connection with the word “evermore.”

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December 29, 2020 Page 6 website does not sell small dragon eggs, guild patches, or small dragon mounts, and nothing could be remotely characterized as such. Fourth, consumers seeking to purchase merchandise related to Ms. Swift are sophisticated and will take extreme care to ensure that items do, in fact, relate to her and not your client’s theme park. As you may know, Ms. Swift has a large and extremely dedicated fan base. Ms. Swift is also highly recognizable. The commercial value of an item related to Ms. Swift is distinct and easily recognizable. You can rest assured that consumers seeking merchandise related to Ms. Swift, rather than your client’s theme park, will ensure that they select the correct items. Fifth, with respect to the strength of your client’s mark, the prevalence of other uses of EVERMORE trademarks both in the marketplace and on the registry further supports the fact that customers are able to distinguish between your client’s products and those offered by the Swift Parties. Indeed, as already discussed above and as your client is well aware, there exists another business in operation called Dr. Evermor’s Sculpture Park. See worldofevermor.com; forevertron.myhopify.com/pages/about-us. Not only does it appear that your client does not have any trademark issues with Dr. Evermor—the operator of another “park”—it has affirmatively argued that the marks can peacefully co-exist. See supra and Exhibit 1. Even more telling, another business—Evermore Medieval Festival (Evermore Faire)—operates a park-like medieval/magical experience in the same niche market as your client. See https://www.evermorefaire.com/. The presence of at least three park-like businesses operating with virtually identical Evermore names speaks to the weakness of your client’s EVERMORE mark. To put it another way, if your client has not been damaged by third parties operating identical businesses under identical trademarks, it is implausible that your client would be damaged by a third party operating a completely different business under a different trademark—as is the case here. *** Whether there is a likelihood of confusion between two marks can often be determined by asking the following question: would a consumer who sees products being offered under a new trademark believe they are associated with a senior trademark holder? Here, the answer is assuredly, no. Simply put, our clients are using distinguishable marks, operate in separate industries, and are competing for different consumers. Given the foregoing, we do not believe there is any likelihood of confusion between these marks, and you have not presented any evidence to the contrary. As explained throughout, your claims of trademark infringement are baseless, and the Swift Parties decline your demand that they “cease and desist from [the] use of the EVERMORE trademark.”

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December 29, 2020 Page 7 We trust that this resolves any concerns your client may have had, and we believe this matter is resolved. Nevertheless, if you want to discuss this matter further, please feel free to contact me at the above Washington, D.C. telephone number. The Swift Parties reserve all rights.

Sincerely,

J. Douglas Baldridge, Esq.

cc: Rebecca A. Liebowitz, Esq.

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EXHIBIT A

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Happy birthday to Taylor…and the fans!

BY DE ELIZABETH DECEMBER 13, 2020

All products featured on Teen Vogue are independently selected by our editors. However, when you buy something through our retail links, we may earn an affiliate commission.

It might be Taylor Swift’s birthday, but her fans are arguably the ones being showered with gifts. Mere days after announcing her unexpected ninth studio album evermore, Taylor is back with a couple of new surprises — just in time for her 31st birthday on December 13. “Not to be all ‘iTs mY BiRtHdAY & I jUsT wAnNa DaNcE’ but... it is and I do,” Taylor wrote on social media Sunday morning before announcing a brand-new version of her latest single “willow” (AKA the rst track o of evermore). “So here’s the willow dancing witch version, remixed by Elvira, a badass female producer I really respect,” she added.

Taylor Swift @taylorswift13

Not to be all ‘iTs mY BiRtHdAY & I jUsT wAnNa DaNcE’ but... it is and I do. So here’s the willow dancing witch version, remixed by Elvira, a bad ass female producer I really respect taylor.lnk.to/willowelvira

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The remix is a more upbeat, electri ed version of the previous track we’ve been playing on repeat all weekend — and it’s de nitely the perfect backdrop for having a magical dance party with your coven. Add that to the list of things I plan to do in the After Times! TRENDING NOW

Taylor Swift's New Single "Gorgeous" DECODED | The Teen Vogue Take

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In addition to the updated rendition of “willow,” Taylor’s website has been a xed with brand-new, limited edition evermore merch — including a birthday jewelry collection with nods to her new music. With the “arcade ring,” ($35) fans can sport two delicate starbursts on their nger; the antique nish ring is inlaid with gilson re blue opal and a scattering of crystals. And if you want to round o the pairing, there’s also the “opal eyes” earring set ($30), composed of starburst studs in the same shape and color as the ring.

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the "arcade ring" Taylor Swift Store $35

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the “opal eyes” earring set Taylor Swift Store $30

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Taylor’s new evermore merch selection also includes a hunter green “life was a willow” long sleeve t-shirt, socks with the words “tolerate it,” and an aptly titled “fancy sh*t” mug. You can check out her entire collection here, or shop some of our favorite picks below!

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the “life was a willow” long sleeve Taylor Swift Store $40

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the “tolerate it” socks Taylor Swift Store $15

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the “eyes full of stars” candle Taylor Swift Store $40

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the “cowboy like me” pullover Taylor Swift Store $49

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Let us slide into your DMs. Sign up for the Teen Vogue take. Want more from Teen Vogue? Check this out: 28 Taylor Swift evermore Lyrics Destined to Become Instagram Captions Wait — Are Taylor Swift’s folklore and evermore Actually Part of a Trilogy? All the Hidden References in Taylor Swift’s evermore

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WATCH

Meet the BIPOC Farmers Cultivating Green Spaces in NYC

KEYWORDS

TAYLOR SWIFT

MERCH

JEWELRY

The young person’s guide to conquering (and saving) the world. Teen Vogue covers the latest in celebrity news, politics, fashion, beauty, wellness, lifestyle, and entertainment.

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