Ed Sheeran faces U.S. copyright trial and a recent case of the General Court

Ed Sheeran faces U.S. copyright trial

Jury selection began on 24 April in Manhattan federal Court in the trial over allegations that British singer Ed Sheeran copied Marvin Gaye’s “Let’s get it on”. The singer appeared in court starting the following day.

Singer Marvin Gaye collaborated with fellow singer Ed Townsend on “Let’s get it on”, which topped the billboard charts in 1973.

The case started in 2017 when Townsend’s heirs sued Ed Sheeran, Warner Music Group and Sony Music Publishing, claiming that Ed Sheeran’s song “Thinking out loud” copied the melody, rhythm and harmony of the song written by Gaye and Townsend.

Ed Sheeran, for his part, defended himself against the allegations, claiming that while there were musical similarities between the songs, such similar elements were basic in nature and hence not copyrightable. In court, Sheeran testified for more than an hour, explaining the creative process behind his song “Thinking out loud”.

If the jury finds Sheeran liable for infringing Gaye and Townsend’s copyright, there will be a further trial to determine the amount of money Sheeran must pay.

We will be watching this trial closely.

General Court considers that the expression “Fucking awesome” lacks distinctiveness

Case T-178/22

In October 2020, FA World Entertainment applied to register the word “Fucking awesome” as a European trade mark (international registration designating the EU) based on two registrations in the U.S.

When analysing the trade mark application, the EUIPO considered that the mark lacked distinctive character and was contrary to moral principles.

The Board of Appeal, however, did not consider the mark to be contrary to moral principles as it did not find it offensive, but confirmed that it lacked distinctiveness – hence refused registration.

The General Court dismissed the appeal brought by FA World Entertainment, thus upholding the decision of the EUIPO.

The GC considered in particular that the expression “Fucking awesome” would be understood as a slightly vulgar way of referring to the high quality of the goods and services, thus serving as a slogan or promotional message rather than serving the purpose of a trade mark (indicating origin).

While EU Courts generally accept that slogans can be trade marked if they are original or trigger a cognitive process (hence, if they are distinctive enough and thus can help distinguish goods and services on the market), the GC considered that this was not the case here, whether the words were taken individually or in combination. The Court further stated that the mere fact that the sign is affixed to the goods does not mean that the public will understand it as an indication of commercial origin rather than a purely promotional message.

This recent case shows us once again that it is difficult to register slogans as trade marks. Here, while the swear word in the slogan turned out to be a non-issue, the purely promotional character of the sign led to its lack of distinctiveness, hence to the registration being refused.