Jay-Z and Beyoncé Talk to the Feds
By, Alex O’Sullivan-Pierce
That’s right, just weeks after the birth of their first child music icons and former renegades, Jay and Bey, are seeking the protection of the United States Government. But it’s not from the FBI, CIA nor the DEA. It is the USPTO- the United States Patent and Trademark Office.
In a seemingly reactive maneuver, the celebrity couple successfully registered a federally protected trademark for their infant’s name, “Blue Ivy Carter.” The mark claims control over the use of the name in relation to a wide variety of goods and services including…
fragrances, cosmetics, hair care products, baby carriages, key chains, and clothing for adults, infants and toddlers. Usually, the process for filing and registering a trademark takes over a year. However the USPTO registered “Blue Ivy Carter” in a matter of weeks. Begging the question: was this special celebrity treatment? Well, sort of. Sometimes the USPTO will accelerate the trademark process if there is reason to believe that it will prevent a flood of subsequent trademark attempts.
In this case, well-known New York fashion designer Joseph Mbeh was actually first to attempt to register a similar trademark for a baby clothing line. Mbeh filed a trademark claim for “Blue Ivy NYC” on January 11, 2012, spurring the new parents to follow up with a claim of their own on January 26th. Perhaps out of professional courtesy or fear of public backlash, Mbeh abandoned his claim on January 24th, and issued a statement saying that he never intended to use the infant’s name without the consent of her celebrity parents. As usual, Jay-Z and Beyoncé (and their lawyers) win. “Blue Ivy” is now the exclusive trademark of BGK, Beyoncé’s holding company, and will remain so indefinitely, even if they never put the name on a single stroller, bib, or diamond-studded velour diaper.
At first shake, this outcome seems entirely fair. Any parent, even those who are not celebrities, can empathize with the desire to protect one’s children from any sort of exploitation, economic or otherwise. But on closer examination, the perpetual monopoly on the “Blue Ivy” name raises questions regarding the level of exclusive control that a celebrity possesses over the use of their name, image, and likeness. More importantly, how far should our government reach to protect the interests of our country’s rich and famous?
The theoretical justification behind the United States trademark law is two-fold. Primarily, trademarks are meant to prevent consumer confusion. The idea is that consumers should be able to trust a brand-name product no matter when or where, knowing that a Snickers bar in Denver is of the same constancy and quality as one in San Diego. The second, distinct but related, justification is that competing producers should not be able to free ride off the good will of another product by making knockoff versions or by giving a product a name which is easily confused with another product. So what are the theoretical grounds for allowing Jay and Bey to register a trademark on their newborn’s name, especially if they do not really intend to create a line of products using the name? Obviously, there is not really an issue of consumer confusion here as no products carrying the name Blue Ivy actually exist. And the second arm of trademark theory, free riding, does not seem like a precise fit either. Interestingly enough, the justification for trademarking Blue Ivy sounds more in the European system of trademark law which is grounded in the theory of moral rights. As in, protecting a person’s right to control the use of their name, or their child’s name, is the just or moral thing for a government to do.
In some ways the hubbub over the Blue Ivy trademark is as unique as the name itself. However this is not the first time that the USPTO or the courts have had to sort out issues related to a celebrity’s right to capitalize on the use of their likeness. Notable cases include famous entertainer and television host Johnny Carson’s legal spat with Here’s Johnny Portable Toilets, Inc.[i] Although the appellate court eventually upheld Carson’s right of publicity, finding that the company’s name combined with the use of the phrase “The World’s Foremost Commodians” infringed on the comedian’s right of publicity, the scope of such rights remain a contentious and unsettled issue looming on the legal horizon.
With the theoretical underpinnings of trademark law in mind, the Blue Ivy Carter trademark is like a tiny, new-born addition to the intellectual property family. More than just a precautionary move by the child’s savvy parents, this is a sign of a trend in the increasing scope of the right of celebrity. There is no telling whether Blue Ivy or her parents will ever capitalize on their trademark rights, but this will prevent others from attaching the name to a product or service in order to falsely suggest to consumers that the Carters support it. Not even a month old, and already a brand. Welcome to the world, Blue Ivy®.
[i] Carson v. Here’s Johnny Portable Toilets, Inc. 698 F2d 831 (6th Circuit 1983)