Showgirl Showdown: What Taylor Swift’s latest US Trade Mark Dispute Means for Australian Brand Owners

A US trade mark dispute between Taylor Swift and Las Vegas performer Maren Wade (legal name Maren Flagg) is a useful reminder for brand owners of the growing tension between creative branding and enforceable trade mark rights.

Flagg claims that Swift’s album The Life of a Showgirl infringes her earlier registered trade mark, CONFESSIONS OF A SHOWGIRL, which she has used since 2014 in connection with live performances, publishing and digital content.[1]

Although the dispute may appear to concern no more than titles, it raises broader commercial issues for clients, such as:

• the increasing relevance of reverse confusion in brand disputes involving unequal market power in the US;
• the limits of “artistic expression” defences where creative works are commercialised as brands; and
• the infringement risks that can arise from multi-channel brand strategies, particularly merchandise extensions.

The Dispute in Context

The dispute centres on two marks:

• CONFESSIONS OF A SHOWGIRL (Flagg) (US trade mark reg. no 4800625, filed 1 May 2014)
• THE LIFE OF A SHOWGIRL (Swift) (US trade mark serial no. 99331566, filed 11 August 2025)

Flagg’s mark began as a weekly column in 2014 and later developed into a broader personal brand spanning live performances and digital media. Swift’s mark was introduced in 2025 as the title of a major studio album, supported by a significant merchandising and retail program.

Flagg alleges that the marks share the same structure, dominant phrase and overall commercial impression, and that they are directed to overlapping audiences.[2]

The USPTO also refused Swift’s application to register THE LIFE OF A SHOWGIRL on the basis that it was likely to be confused with Flagg’s earlier mark[3].

Key Legal Issues

• Likelihood of Confusion

Under US law, trade mark infringement depends on whether consumers are likely to be confused about the source of the goods and/or services, assessed by reference to a multi-factor test (AMF Inc v Sleekcraft Boats).[4]

Flagg’s claim centres on the structural similarities between the two marks, including their shared dominant wording—particularly the phrase “of a Showgirl”—as well as the overlap in commercial channels, such as entertainment content and associated merchandise, and instances of alleged confusion in online environments.[5]

In that sense, the dispute involves a familiar likelihood-of-confusion analysis, but with one important twist – reverse confusion.

• Reverse Confusion: A Key Risk for Large Brands

Reverse confusion is central to Flagg’s claim. It can occur where a powerful junior brand overwhelms a smaller senior user, causing consumers to believe the senior user’s goods or services are associated with the junior user. The harm is not traditional misappropriation of goodwill, but the erosion of the senior user’s identity and control over its reputation in the market.

US courts have long recognised reverse confusion as actionable trade mark infringement. In Big O Tire Dealers Inc v Goodyear Tire & Rubber Co,[6] the court accepted that a junior user’s substantial advertising and market reach could swamp the senior user’s mark, warranting relief even without conventional passing off. Similarly, in Dreamwerks Production Group Inc v SKG Studio,[7] the Ninth Circuit confirmed that reverse confusion may arise in the entertainment sector where a large entity’s branding overwhelms a smaller business using a similar name.

Although well established, the doctrine is factually complex and evidentially demanding. A senior user must show not only similarity between the marks, but also that the junior user’s market dominance has caused, or is likely to cause, measurable harm, such as loss of reputational control, reduced brand recognition, or actual consumer confusion.

• Artistic Expression vs Trade Mark Use

Swift’s legal representatives are arguing[8] that the album title is an expressive work, with their defence relying on the test outlined in Rogers v Grimaldi[9], determining that the use of a mark in the title of an expressive work will generally not infringe unless the use has no artistic relevance or is explicitly misleading. The US Supreme Court has since narrowed that defence,[10] confirming that it does not apply where the sign is being used as a trade mark.

Swift’s representatives also cited another a high-profile trade mark infringement case brought against Lady Gaga by a surf apparel company[11] for her use of the word “Mayhem”. Lost International, LLC’s preliminary injunction request was ultimately denied, with the court finding that Lady Gaga’s use of “MAYHEM” on merchandise promoted an expressive work and was therefore protected under Rogers.[12]

Flagg’s position is that Swift’s use goes beyond an album title and forms part of a broader commercial brand strategy in that the mark appears across merchandise and retail goods, trade mark applications had been filed for the “LIFE OF A SHOWGIRL” phrase and that the phrase functions as a source identifier.[13]

• The Strategic Significance of USPTO Refusal

The USPTO’s refusal under § 2(d) is not determinative of the issue, but it is a significant indicator in the broader analysis. Examining attorneys apply a confusion test that closely parallels the approach taken by the courts and, in this instance, concluded that the differences between the marks were insufficient to overcome a likelihood of confusion.

From a practical perspective, objections raised during the examination process should not be dismissed as mere procedural obstacles—rather, they can assume evidentiary weight and form a central component of any subsequent litigation strategy.

Australian Trade Mark Law Perspective

While the case proceeds under US law, its commercial lessons translate directly to Australia.

For Australian businesses, particularly those in the media, consumer goods and lifestyle sectors, the case is a timely reminder that descriptive or creative phrases can still carry legal risk when used on a large scale.

Under s120 of the Trade Marks Act 1995 (Cth), the relevant questions would be whether the mark is deceptively similar and whether it is being used as a trade mark?

Deceptive Similarity

In Australia, the test for determining deceptive similarity set out in The Shell Company of Australia Limited v Esso Standard Oil[14] assesses whether there is a real and tangible danger of consumer confusion, not merely a possibility.

Applied to the US “Showgirl” dispute, one critical factor in assessing the marks is the shared term “SHOWGIRL”. Arguably this element is descriptive in the context of entertainment services, which could reduce its distinctiveness in the eyes of IP Australia. Where a shared element is descriptive, greater emphasis may then be placed on distinguishing features such as the prefixes used or additional wording included in the mark. With this in mind, the differences between “Confessions” and “The Life” may carry more significance in Australia than what they would under US law.

Further, Australian courts have recognised that the context of how the mark is used matters.[15] In a scenario where both marks are to be used in entertainment (and the associated merchandising), there may be a heightened risk of confusion due to the overlapping trade channels and audience proximity – even if there is a significant difference between the scale of the underlying brands.

One important thing to note here is that, unlike in the United States, Taylor Swift would not be able to rely on a broad “artistic expression” defence because the mark is used as an album title. Rather, the focus would be entirely on whether the use of the mark is likely to mislead or deceive consumers as to the source of origin.

Use as a Trade Mark

Australian courts have consistently emphasised that the inquiry as to whether or not a sign us being used “as a trade mark” (that is, as a badge of origin indicating a connection in the course of trade) is both contextual and functional. In E & J Gallo Winery v Lion Nathan Australia Pty Ltd[16], it was confirmed that the central question was whether the sign in question is being used to distinguish the goods and services from those of other traders[17] and more recently, in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd[18], the Court reinforced that even where a sign contains descriptive elements, it may still operate as a trade mark depending on how it is presented and perceived by consumers in the commercial context.[19]

In this case, the question would be whether THE LIFE OF A SHOWGIRL is being used merely as an expressive title, or whether its use has crossed into trade mark use.

When used purely as a title of a creative work, the phrase “THE LIFE OF A SHOWGIRL” may not constitute trade mark use. Its function is descriptive of the creative work and could form part of the artistic work rather than an indicator of origin.

This position, however, could possibly change when the same phrase is used across multiple ranges of goods (such as merchandise and promotional materials). In that event, the mark could function as a source of origin, particularly when used consistently across product lines and is presented in a way that suggests branding (rather than a mere description).

This distinction between trade mark use and non-use is particularly significant in the Swift context. While the phrase originated as an album title, the use of it appears to have been extended across a coordinated commercialisation plan, including apparel, accessories and other retail goods. From an Australian perspective, the broader adoption of the phrase would strongly support a conclusion that the phrase is functioning as a trade mark, notwithstanding its origins as an expressive title.

Take aways to consider

The “Showgirl” dispute highlights a reality of modern brand strategy: the boundary between creative expression and trade mark use is becoming increasingly blurred. As businesses continue to leverage various forms of content as valuable brand assets, the legal characterisation of those assets is becoming increasingly significant.

For Australian clients, the takeaway is clear—where a name has commercial value, it carries corresponding legal risk and should be managed accordingly. Importantly, a sign does not need to operate as a trade mark from the outset to attract protection or infringement risk; it may come to function as one through sustained commercial use.

Further to this, larger companies looking to expand and adopt a new brand should avoid overlooking smaller operations with earlier rights. Instead, it may be worth considering a more proactive engagement with them (by way of coexistence or licensing) to mitigate the risk of costly disputes that may not ultimately resolve in their favour.

[1] LegalClarity Team, ‘Life of a Showgirl Lawsuit: Trademark Claims and Defense’ (Webpage, LegalClarity, 25 June 2026) <https://legalclarity.org/life-of-a-showgirl-lawsuit-trademark-claims-and-defense/>.
[2] Flagg v Swift, Complaint for Trademark Infringement (15 U.S.C. § 1114), False Designation of Origin and Unfair Competition (15 U.S.C. § 1125) and California Unfair Competition (Cal. Bus. & Prof. Code §§ 17200 et seq.), 2:26-cv-3354 (CD Cal, filed 30 March 2026) [7] <gov.uscourts.cacd.1013032.1.0.pdf>
[3] United States Patent and Trademark Office, Office Action for ‘THE LIFE OF A SHOWGIRL’, Serial No 99331566 (5 November 2025) 2 <https://tsdr.uspto.gov/documentviewer?caseId=sn99331566&docId=NFIN20251105213320&linkId=6>.
[4] AMF Inc v Sleekcraft Boats 599 F 2d 341, 348–9 (9th Cir, 1979)
[5] Flagg v Swift, Complaint for Trademark Infringement (15 U.S.C. § 1114), False Designation of Origin and Unfair Competition (15 U.S.C. § 1125) and California Unfair Competition (Cal. Bus. & Prof. Code §§ 17200 et seq.), 2:26-cv-3354 (CD Cal, filed 30 March 2026) [7], [68] <gov.uscourts.cacd.1013032.1.0.pdf>
[6] 561 F 2d 1365, 1371–72 (10th Cir, 1977).
[7] 142 F 3d 1127, 1128 (9th Cir, 1998).
[8] LegalClarity Team, ‘Life of a Showgirl Lawsuit: Trademark Claims and Defense’ (Webpage, LegalClarity, 25 June 2026) <https://legalclarity.org/life-of-a-showgirl-lawsuit-trademark-claims-and-defense/>. 
[9] 875 F 2d 994, 999 (2d Cir, 1989).
[10] Jack Daniel’s Properties Inc v VIP Products LLC 599 US 140, 157–58 (2023)
[11] Lost International, LLC v Stefani Joanne Angelina Germanotta (CD Cal, No 8:25-cv-00592, filed 25 March 2025)
[12] Scott M Hervey, ‘Why Lady Gaga Prevailed in the “Mayhem” Trademark Dispute’ (Blog Post, The IP Law Blog, 2 March 2026) <https://www.theiplawblog.com/2026/03/articles/ip/why-lady-gaga-prevailed-in-the-mayhem-trademark-dispute/>
[13] Flagg v Swift, Complaint for Trademark Infringement (15 U.S.C. § 1114), False Designation of Origin and Unfair Competition (15 U.S.C. § 1125) and California Unfair Competition (Cal. Bus. & Prof. Code §§ 17200 et seq.), 2:26-cv-3354 (CD Cal, filed 30 March 2026) [42-48] <gov.uscourts.cacd.1013032.1.0.pdf>
[14] (Australia) Ltd (1963) 109 CLR 407 [13]
[15] Campomar Sociedad Ltd v Nike International Ltd (2000) 202 CLR 45,[102]–[105]; Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186,[55]–[61]
[16] (2010) 241 CLR 144
[17] Ibid, 159 [42]
[18] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186
[19] Ibid, 204–5 [22]–[24]