Jay-Z and Beyoncé’s Daughter “Blue Ivy”…and Her Clothing Line?

Proud parents of Blue Ivy Carter.

She might not have 99 problems, but Jay-Z and Beyoncé’s newborn daughter, named Blue Ivy Carter, has already got at least 1 intellectual property problem.

A New Yorker filed a trademark application to the USPTO for “BLUE IVY CARTER NYC” for “infant, toddler, and junior clothing.” Included in the application are photos of the clothes with the BLUE IVY CARTER NYC mark attached. The application claims the date the mark was first used was January 9, 2012. Blue Ivy was born January 7, 2012.

On a side note, I really hope the applicant did not claim that he used the mark as pictured, with the “®” symbol. The “®” symbol in the United States is reserved only for registered trademarks, and misuse is viewed as a type of fraud on the public and punishable by law.

Right of Publicity and False Endorsement

The “right of publicity” is a relative of trademark law, and protects the economic value of one’s name. It stands for the notion that one has the right to control the use of their name for commercial purposes, a notion based in the protection of one’s identity.

“False Endorsement” is a type of false advertising, and U.S. trademark law makes liable “Any person who…uses in commerce any [name], which is likely to cause confusion…to the origin, sponsorship, or approval of his or her goods”.

BLUE IVY CARTER NYC

Ultimately, I highly doubt that the applicant for the “BLUE IVY CARTER NYC” mark will succeed, if it is true that Jay-Z and his legal team are going after those who are capitalizing from his daughter’s name. Even if the application makes it through the USPTO vetting process and a fierce opposition filed by Blue Ivy’s parents, a civil suit could really discourage the applicant in other ways.

Based on the current facts, the case against the applicant is quite strong. Jay-Z, as guardian at litem (I’d be interested in hearing from a family law attorney how this would work in this context), needs only to show that a “likelihood of deception” exists through the use of the BLUE IVY CARTER NYC trademark. Assuming that the applicant’s target market overlap’s Jay-Z’s market, this should not be hard to demonstrate when one considers 1) the uniqueness of the name, 2) the proximity of the date of first use to Blue Ivy’s birth, 3) the inherited fame of Blue Ivy, and 4) the existence of “NYC” in the mark as another link to Blue Ivy herself. I can also see a cause of action for appropriation of name or likeness, usually a state tort law, which makes liable those whose use another’s name for commercial gain.

After Jay-Z is done dealing with this problem, then perhaps he can deal with the recent proliferation of a strain of medical marijuana in California, dubbed “Ivy Blue OG”. Perhaps he would smoke some out of his own curiosity.

– ck

:     :     :     :     :     UPDATE 3.1.2012     :     :     :     :     :

 

The above blog post was published on January 23, 2012. On January 25, 2012, the applicant mysteriously abandoned his trademark application. On January 26, 2012, Beyoncé’s holding company BGK Trademark Holdings filed a trademark application for BLUE IVY CARTER in 15 international classes (read $4000 in USPTO fees, and since Reed Smith did the filing, tens of thousands of dollars in attorney’s fees). The applications were filed as “intent-to-use” applications, which essentially reserves an applied-for mark until it is ready to be used. However, there is a maximum number of time extensions that may be filed, which means, in this case, the proud parents will have to use BLUE IVY CARTER within three and a half years (approximately the maximum time they can buy if they exhaust all their time extensions).