Federal Court Denies Request to Dismiss ‘High Off Life’ Trademark Infringement Lawsuit Against Future and Sony Music

Future performing live. Photo Credit: Frank Schwichtenberg

A federal court has officially determined that Sony Music Entertainment (SME) and Future must face a trademark infringement lawsuit concerning the title of the rapper’s High Off Life album.

Judge W. Scott Hardy just recently denied the lawsuit-dismissal request from Sony Music and Future, who released his eighth studio album, High Off Life, via SME’s Epic and his own label, Freebandz, in May of 2020.

A 13-year-old company called High Off Life, which bills itself as “a creative agency specializing in music, clothing, digital content marketing, & branding,” submitted the overarching complaint in November of 2020.

High Off Life – which, like Freebandz, is based in Atlanta, Georgia – sells a variety of branded merch, operates a namesake record label, and says that it has “accumulated over 450 million video views since 2017″ for “various clients.”

Bearing in mind these background details, High Off Life and its founder, Zach Richards (artist name Phene), said in the original action that they own three trademarks pertaining to the brand: Numbers 5,569,671 (issued in September of 2018), 5,690,553 (issued in March of 2019), and 5,690,565 (also issued in March of 2019).

Additionally, the plaintiff company maintained that it had been using High Off Life “marks in relation to hip-hop music, clothing, events promotion, and branding and advertising since early 2009,” investing “significant money and time into building consumer recognition” and thereby acquiring common-law rights to the brand.

High Off Life alleges that Future and Sony Music infringed upon these trademarks with High Off Life – originally entitled Life is Good, according to the plaintiffs, but changed to the ultimate title “at the last minute due to concern about coronavirus-related negative press” – as well as associated merch and “a wide-spread advertising campaign.”

High Off Life relayed that it had sent cease-and-desist letters to the defendants in June of 2020, but that the parties “did not respond and subsequently expanded sales of” the merchandise in question.

Of course, Sony Music and Future then sought to dismiss the filed lawsuit – particularly because the album title is purportedly “protected by the First Amendment” – and this request has been denied, as mentioned at the outset.

“In this instance, even if the Court were to accept Defendants’ invitation to apply the Rogers framework as a valid defense to HOL’s claims,” wrote Judge Hardy, “the Court concludes that a motion to dismiss is not the appropriate stage in this litigation to address the applicability of the First Amendment defense.

“In reaching this conclusion,” continues the legal text, “the Court does not definitively hold that Defendants are not entitled to First Amendment protection under the Rogers test. Instead, the Court finds that the analysis of whether the First Amendment protects Defendants’ actions is more appropriately conducted at the summary judgment stage after development and presentation of a factual record.”

The presiding judge also confirmed his denial of the dismissal request via a formal order, and at the time of this piece’s writing, neither Sony Music nor Future had addressed the development on social media. Towards 2022’s beginning, Spotify emerged victorious in a trademark battle with a software company called “Potify,” which had developed a marketing platform for legal cannabis dispensaries.

One Response

  1. Atticus Flinch

    So, the title of an album (not a trademark) causes confusion for a company that provides entertainment services?

    Sounds like a stretch to me.