November 1, 2024 • 46 mins
Trade marking isn't just a legal formality; it's a strategic move that can help make or break a band's artistic journey. Joining Lee Davies and Gwilym's stand-in, Neil Lampert, this week are trade mark attorneys Chris McLeod and Jerry Bridge-Butler, of CITMA, who bring a blend of legal expertise and rock 'n roll enthusiasm to our discussion. From Frank Zappa's Mothers of Invention to the oft-debated legacy of The Smiths, our guests provide insight into the historical missteps and modern approaches to band names and trade marks.
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Episode Transcript
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Speaker 1 (00:00):
Neil, hello, Welcome back as co-host of the podcast.
I've not had you on for alittle while, mate.
Hello, mate, Good to see you.
Yeah, I've seen you all week,of course, because we've just
both got back from a rathermagnificent CIPA Congress our
most attended yet and probablyone of our most compelling
themes.
Having spent the whole daylooking at the UPC, which was
rather insightful, wasn't it itwas great we had UPC judges.
Speaker 2 (00:22):
We had visitors from around the world.
Rather insightful, wasn't it?
It was great we had UPC judges.
We had visitors from around theworld.
We did as far as Australia, noless.
Speaker 1 (00:28):
Yeah, australia, the States WIPO were there, which
was rather cool.
So, yeah, it all wentbrilliantly, thanks to the
organising committee and,obviously, the hard work of the
super staff.
Have you been up to anythingsince I saw you on the plane
yesterday?
Speaker 2 (00:43):
Sleeping mainly.
Speaker 1 (00:44):
It's much the same, mate, much the same.
It does take it out of you,doesn't it?
It's amazing how much a coupleof days away, conference
delivering does take it out ofyou.
It's great to have you on thepodcast today because you're a
great music buff, aren't you?
Speaker 2 (00:57):
Yeah, I'm looking forward to this one.
Speaker 1 (00:59):
Yeah, I thought you might be.
Speaker 2 (01:06):
Go on, who's your fave?
Remind me again.
Well, we're talking abouttrademarks and band names,
aren't we?
My great hero is frank zapper,and there's a bit of a band name
related to him because his bandwas the mothers of invention.
But he had to extend the namebecause he originally called the
band the mothers, but that wasdeemed a bit too risque back in
the 60s given the connotationsof that word.
So he changed it to the mothersof of Invention for the, I
think the record company forcedhim to do that.
Speaker 1 (01:28):
I'm a big fan of the Smiths, or was a big fan of the
Smiths.
I met Morrissey, of course.
So I met all of them, butMorrissey is the one that stands
in my mind because he told ourband that we should we should
give up call it a day because weweren't good enough.
So that's my abiding memory,memory of when we appeared at
the same venue back in 1981 or82, or whenever it was
(01:49):
Portsmouth PolytechnicUnbelievable but true.
Unbelievable but true.
I might even give away our bandname when we get into the
conversation with our guests,because it's too long gone now
and obviously we never madeanything of it, but I'd still be
interested to know whether wecould have done anything to
protect it, and maybe I stillwill.
Speaker 2 (02:09):
Lee Davis and Gwilym Roberts are the two IPs in a pod
and you are listening to apodcast on intellectual property
brought to you by the CharteredInstitute of Patent Attorneys.
Speaker 1 (02:27):
So let's bring our guests on first.
Let's go to Chris first.
Chris, introduce yourselfplease, if you wouldn't mind.
Speaker 4 (02:32):
Yes, good evening or good morning.
The interweb, chris McLeod.
I am a partner at Elkington andFife.
I run the trademarks team.
I'm also responsible for thehilarious trademark of the week
(02:52):
post on LinkedIn and I adviseyou strongly to look out for
that every Friday.
Today's is sort of borderlinein terms of bad taste, but I've
seen a lot worse.
Okay.
Speaker 1 (03:12):
I'm a bit aged right after this recording.
Speaker 4 (03:16):
So that's me, and a big music fan have been for
decades and decades, althoughI've never heard of Lee's band
and I've never met morrisseythat's to your advantage, and
I'm always a big fan ofmorrissey.
Speaker 1 (03:32):
Uh, jerry, welcome to the podcast.
Welcome back to the podcast.
Speaker 5 (03:34):
I think we should say , um, remind us who you are, sir
yeah, before I start, let mejust pick up this massive name,
drop off the floor and give itback to you.
Yes, so I'm Gerry Bridge-Butler.
I'm a partner at Baron WarrenRedfern.
I lead the trademark team here.
Like Chris, I'm dual qualified,so patent attorney and
trademark attorney.
(03:55):
I'm also a massive music fan,just like everybody seems to be.
I think it's a generationalthing.
I'm always rather disappointed.
My children don't seem to likemusic as much as I do.
But it's been really interestinglooking into this question of
band names, and a lot of theband names that come up are all
quite old and very wellestablished names that everybody
knows.
(04:15):
But you're going back quite along time with a lot of this
stuff.
But it just seems to be thatthere was something a lot more
rock and roll in the past.
Bands split up because theywere way more rock and roll.
There was something a lot morerock and roll in the past.
Bands split up because theywere way more rock and roll.
There were lots of argumentsand shouting and of course they
didn't care about registeringtrademarks and stuff like that.
Oh, that's terribly not rockand roll at all, is it?
So maybe these days, withmanufactured bands, that doesn't
(04:36):
happen at all.
But if you're talking about,you know, the Smiths, pink Floyd
, beach Boys, deep Purple, allthose sorts of things, you know
they're way more rock and rolland I think it probably reflects
well on them in that respectthat they end up falling out
Brilliant.
Speaker 1 (04:50):
Yeah, yeah, yeah.
No, I'm sure you're right.
I think music existed afterabout 1992, didn't it?
Really, that's the generalconsensus.
It does with the conversationsI have with my children,
although as they get older, Ifind they seem to like what you
like, and I don't know if that'sjust because they've had it
played to them so much that it'searwormed into their brains, I
(05:12):
don't know.
Anyway, we're here actuallybecause of a conversation I have
with Chris and I have withGerry on LinkedIn, immediately
in the aftermath of Morrisseyhaving one of his
all-too-regular rants, this timeagain, about Johnny Marr saying
(05:32):
how Marr had gone away andnicked the Smiths' name by
trademarking it and he wasreally angry about it.
This goes back just to kind ofa couple of months ago.
This year transpires that, infact, marr had registered back
in 2018, and Morrissey had onlyreally just woken up and found
out and he had done itprotectively because the name
was starting to be, um,trademarked for other uses, uh,
particularly in digital gaming,and it actually involved
(05:53):
morrissey solicitors in that,and the joint ownership aspect
was just waiting for morrisseyto sign a document.
So, um, as he tends to do whenhe goes off on one um made made
a little bit of a um fool ofhimself, but then he do.
When he goes off on one made alittle bit of a fool of himself,
but then he did.
When he said that our bandcouldn't play either, because
clearly we could, it might havebeen fair to say that I couldn't
sing.
That probably was a fairstatement.
(06:15):
So where should we start off?
I mean, I'm conscious thatquite a lot of people listening
to this will not be Trey Buckattorneys or like Jerry, or
maybe not be attorneys might belistening to this either because
they're just followers of thepodcast for its ip angle, or
because it's got the wordsmorrissey and mar in the little
teaser that were put out, whichmight attract a uh an audience.
(06:36):
So perhaps, as I'll start withyou, chris, if that's okay, just
perhaps a little bit of generalgen on trademarks generally, if
that's okay, yeah.
And then we're working to whythey might be important for
bands and why bands historicallydidn't protect them.
Speaker 4 (06:51):
Yeah.
So I guess the premise is thathaving a registered UK trademark
gives you a monopoly right, andthat monopoly right is pretty
extensive, or at least it can be, so it protects the identical
mark, but also similar marks,and then identical products and
(07:17):
services, and also similar goodsand services, and possibly
goods and services which aren'tsimilar, if you can show
sufficient reputation.
So it's a very cheap andpotentially powerful tool and
then, in tandem with that, youcan build up use-based rights
(07:39):
which could be enforced undercommon law at passing off.
So, for example, you know lee'sband, I don't know what the
name is.
Speaker 1 (07:50):
You're gonna, you're gonna tease it was.
It was genius id genius id.
Speaker 4 (07:54):
I mean that's that's inherently very pretentious,
extraordinarily pretentious it'sinherently distinctive, though,
but so, from the, from the daywhen you started, uh, the band,
you would be generating goodwill, which which isn't an
assessment of the quality of theoutput, but it just means that
(08:17):
you start to build up protectionwhich you could enforce against
.
You know an upstart band calledId Genius or something like
that.
So you've got these two rightsthat are often pleaded together,
(08:37):
but you don't.
You don't need to be using yourmark until it gets to five
years on the register.
At that point, someone couldcome in and attack it.
I don't know if Gerry wants toadd a gloss to that.
Speaker 5 (08:54):
Well, I think I'd just maybe take an even bigger
step back and just say whattrademarks actually are.
They are signs that aredesignators of origin and
they're supposed to avoid,prevent confusion.
So if you see a trademark andyou recognize it, you know where
that product comes from, um,and if you see a different
trademark on a different product, you know that comes from
(09:15):
somewhere else.
So that's where the wordbranding comes from branding
cattle.
So this is my cattle, this iswhere it comes from.
So when you're talking bandnames, if you see a band name on
an album, you know who madethat music because it's that
band.
So when it comes to sort ofavoiding confusion here, it's
all about when bands break apartand which is, which is the band
(09:38):
?
Is it this one over here or isit this breakaway person over
there?
And if you've got two peopleusing the same brand name, what
actually happens is confusion.
And that's what trademark lawis all about.
It's about preventing confusion.
So that's what a trademarkregistration is for you obtain
it and it gives you the power toprevent that confusion
happening.
So if you have the band nametrademarked already and it's all
nicely controlled, then ifsomething like this were to
(10:00):
happen and someone were to gooff and start using it
themselves a former band member,for instance you can take
action and you can stop it, andthat's how trademark law works.
So with the Smiths example, itwasn't a registered trademark.
For all the years that theywere famous they didn't bother
to register it as a trademark.
Because if you're selling breador violins or something, then
(10:20):
you've got a business that makessomething and sells it, and so
getting a trademark registrationis something that most people
do do and it's at the forefrontof most businesses' minds.
But it's very difficult totranspose that thinking across
to an artistic endeavour like aband.
Band members don't think aboutregistering trademarks because
it's all.
As I said before, it's all rockand roll, isn't it?
But then the problem comes whenyou have a falling out.
(10:41):
It's like, well, now we'vefallen out, now who owns this?
And it always well, I was goingto say it surprises me perhaps
it doesn't how emotional, um, alot of my clients get when it
comes to trademark disputes.
It's a very sort of simple,sort of legal thing we're
talking about.
But if you talk about, you know, artistic people in a band, one
member of a band sees anothermember of a band registering the
(11:02):
trademark.
That is absolutely infuriatesthem because they think they're
being taken for a ride.
And that's what happened here,as you pointed out.
There might not actually havebeen an issue but, because there
was a lack of communication,you had one person registering
it saying I own this, I controlthis, I'm the one who's
controlling this marketplace.
And there's already confusion.
Poor old Morrissey's out in thecold saying oh no, hang on a
(11:23):
minute, why have I been left outof this and that's where you
get a dispute arising.
Speaker 1 (11:30):
Can I just add a sort of further element or question
in there?
Would it be possible?
So go, go back.
Let's just stick with Smithsfor the moment, because it's the
example we started with, andthen we'll go elsewhere.
Yeah, they did.
They didn't register anythingduring their actual kind of
productive years.
Could the music company haveregistered it?
Could?
Could someone else of who wasinvolved in that kind of output,
if you like, have registered itand therefore prevented them
(11:51):
from ever using it other thanunder the auspices of um, that
record company or whatever itmight be?
Speaker 5 (11:58):
well, the answer to that is is yes.
I think the very modern way ofproducing uh music is to do it
in that manner.
It's a lot more controlled by arecord company or a producer
like Simon Cowell or somebodylike that, who will manufacture
a band and then all the legalswill be tied up very nicely and
the record company will controlit.
So you know, something like OneDirection, for instance.
(12:18):
You know that is almostcertainly not owned by the band
but owned by the production, andthere's going to be similar
examples of that.
I mean, I came across oneexample where a band had sorted
itself out properly and was ableto control the situation, and
that was the Stone Temple Pilots, a grunge band from the US.
So this was a case that wasunder US law.
But the former singer, scottWeiland, or Weiland, or however
(12:41):
you pronounce it he basicallyleft the band and they went off
and started singing, you know,and pretending to be Stone
Temple Pilots.
But they were able to sort itout very rapidly because they
had a proper agreement in place,they had trademark
registrations and they put anend to it sharpish, and that's
what the ideal that you'd belooking for.
So I guess, if you consideredproducing music a bit like
producing a book.
If you look at publishing,companies know they register
(13:02):
trademarks, they get everythingsorted out, it's all legally
sorted out.
Um, so the modern way of doingit would be probably very much
along those sorts of lines.
But I think perhaps a slightly,you know, a more interesting
question.
Maybe chris can answer this.
But if you are a band now andyou're not necessarily at a high
level, but you're forming theband and you're thinking about,
well, how best should we, youknow, what would be the best
(13:24):
advice to give you know a groupof youngsters in terms of just
making sure that they sort itout so that the future doesn't
hold any disputes?
Speaker 1 (13:33):
That's a great question, chris.
So the now 15, 16-year-old mehas come to you saying we've got
this band.
It's called Genius Id.
What do we do?
Speaker 4 (13:48):
Well, I would follow the same line that I take with
more, you know, wealthierclients.
I'm not suggesting you're notwealthy, you've got, obviously
got a piano which I don't have.
Is it a piano or is it a bureau?
It's a piano, good, good, Idon't play.
Ah, good, um, yeah, I would say.
I would say, do it because it'srelatively cheap, and do it in
(14:14):
the individual names of each ofthe group, and then if someone
leaves, then you have someagreement which sort of says
that if someone leaves, thenthey give up their share of the
trademark.
(14:34):
I think Coldplay are a arereally I wasn't going to say
interesting band and actuallyI'm not a cold play basher, I
don't mind them, um, but they,I'm pretty sure their trademark
is owned equally by the fourmembers and their publishing
deal is unusual in that it'ssplit equally four ways.
(14:56):
So you know, and I thinkthey're probably a good example,
they've definitely registeredtheir trademark.
But certainly I would say getin there early, register, and
then really the issue goes away.
If you don't make it, you justdon't renew the mark.
If you do make it, then you'reprotected.
Speaker 1 (15:16):
So but can I?
Can I come back on something?
So in your um introductorycomments you said about uh uk
registered mark, uh music'sglobal, isn't it so?
Um, so how fast?
How far should the extent ofyour protection go?
Should you be thinking abouteurope?
Should you be thinking aboutthe world?
Speaker 4 (15:32):
yeah, but that that's that's when you do start to run
up costs, because, okay,getting euy protection is
relatively cheap and maybe awipo international registration
could pick off the us etc.
But it it just becomesexpensive.
So I think you know, perhapswhen they get their first
(15:56):
advance um, then you know theycould look at extending
protection outside the uk.
But I don't know if you've beenwatching this I think it's
called paid in full a bbc two,three parter about specifically
the black music industry and howbig record companies have
(16:21):
systematically ripped them offfor decades.
It is, it's fascinating.
I mean there's a clip of tlcopenly saying at the grammys
that you know we've had x numberone hits and we are broke.
What is going on, um?
So yeah, I think you know,register the mark and then if
(16:44):
you get a deal, you know you cantalk to the record company
about licensing it to them.
So some models now are owneverything and license it and
then if the deal goes south,then you retain your rights to
some extent Obviously not all ofthem, but you keep your
(17:06):
trademark.
Speaker 5 (17:14):
I mean, a really good example of a slightly
alternative way of dealing withthat is to rebrand yourself, and
there's a really famous exampleof somebody doing that, and
that's Prince, who rebrandedhimself as Cymbal or the artist
formerly known as Prince, sowashing his dirty, washing in
public very much, and that wasobviously an example of him
feeling like he didn't actuallycontrol the brand name Prince or
the output of Prince, or it wasa dispute with his record
(17:35):
company about how much output hecould put out.
Um, so you know, it's aterrible situation to be in, but
someone of his fame was able toalmost get away with it.
He was so famous he could getaway with a re, one of the
world's most famous rebrands amuch better rebrand, I would say
, than rebranding Twitter to X,which I think is one of the
worst rebrands of all time.
But it just shows that therewas obviously a dispute that
(17:59):
arose there because of whocontrolled it and an artist
feeling like, well, hang on, I'mthe artist here, I'm the one
who's actually built thereputation in this brand name
because I'm the one writing themusic, but I don't control this
name, I don't control how muchoutput I can put out.
I'm losing artistic control.
So what am I going to do?
I'm actually going to rebrandmyself, which is a pretty
astonishing thing to do, and Iseem to recall him actually
(18:21):
appearing on Top of the Popswhen I was younger, with a cloth
across his entire face, so youcouldn't even see his face.
He's saying you control myimage, you control everything.
This is terrible.
I'm not even going to show myface.
So you obviously don't wantthat to happen.
But unless you're enormouslyfamous, you can get away with
actually making yourself morefamous by rebranding.
Yeah, you wouldn't wantsomething like that.
(18:42):
I think I just pick up on acouple of points that Chris made
about, you know, protecting themark around the world.
As Chris points out, if you'reregistering trade parts in lots
of different jurisdictions, itgets hideously expensive.
But one thing to just mentionin contrast to patents, there is
no deadline for extending yourrights to other jurisdictions.
You can build a portfolio oftrademark registrations over a
long period of time.
(19:02):
So you can start off small witha UK application, just get the
ball rolling and then, if you dogrow, if you start selling
music in America, then registerthe mark there.
You know you can do a bit ofclearance, searching first to
see whether or not the mark isgoing to be available to you.
But there is also this otherproblem, which is an issue with
trademark registrationsgenerally, which is what do you
register a band name for?
When you register a trademark,you register it for selling
(19:25):
particular goods or forproviding particular services,
and there isn't actuallyanywhere in the trademark
classification system that saysyou know bands.
It just doesn't exist.
So you've got to register yourtrademark for entertainment
services, which is protectingyou for the live performances
and actually being a band.
But then if you want toregister it for I mean, this is
a slightly out of date thing butselling CDs and so on, that's
in class nine.
(19:46):
If you want to sell clothing,that's in class 25.
If you then want to startselling perfume and key rings
and sunglasses, all of a suddenyou're becoming almost like a
diversified brand which I thinksomebody like Coldplay if you
were to look at theirregistration probably covers an
awful lot of stuff and it buildsand builds and builds.
And you can buildjurisdictionally, you can build
(20:08):
subject matter-wise.
You can build up a huge empire,a sort of portfolio of
trademark rights associated withyour brand if you want to.
But you don't have to do thatstraight away.
You can just build it as youwent along, depending on how
famous you are I've now gotodour pink floyd going around in
my brain for some reason.
Speaker 1 (20:26):
I don't know what that smells like.
I've never been to a pink floyd.
Speaker 4 (20:28):
Pink floyd gig, probably pretty bad patchouli
oil, maybe Petulia oil, maybeOld blokes, yeah, sweat maybe.
Speaker 2 (20:40):
Do individual band members think about trademarking
their own names?
Speaker 4 (20:46):
I mean it's, yeah, it's probably.
I guess it might be worth it ifyou're you know, radiohead's
not really a great example and,by the way, I don't like
Radiohead there are things youdo like, yeah, there's loads of
stuff I do like I'm going totalk about a few of the arcane
(21:10):
cases that I've dragged out, butso Radiohead had to have that
side project.
I can't remember what they'recalled.
Smile yeah, thank you, andwhat's?
What's the singer called?
I can't remember his name.
Tony Hawk yeah, he does solostuff you don't write.
(21:31):
I told you I'm not a Radioheadfan.
Yeah, I'll die in a ditchbefore I listen to them.
Um, but yeah.
So I think if you're, if you'retrading on your own and then
putting out cds, streaming, youknow, merchandising, whatever,
(21:52):
then probably it is worth doing.
Speaker 5 (21:56):
I mean, a good example would be somebody like
Slash from the Guns N' Roses.
Speaker 4 (22:00):
I don't like Guns N' Roses, no I didn't think you
would.
Speaker 5 (22:03):
So you've got Guns N' Roses, obviously a very famous
band name, very famous brand, ifyou like.
They've had their own problemsactually with arguing over the
name because when the band splitup, axl Rose took control of it
and went off touring on his own, effectively, with other band
members who none of them were inthe original Guns N' Roses.
I had the misfortune of seeinga concert of Axl Rose with all
his other bandmates and it wasdreadful.
But it's just a good example ofyou've got somebody in a band
(22:27):
who has his own brand, even whenhe was still in the band and
because he has that sort ofrather odd name.
You know Slash, and you couldsay the same thing about Bono or
the Edge or something like that.
So those are actually separate.
You could call them sub-brands,I suppose.
But they do really belong tothose individual people and if
they went off and recorded theirown music and released their
own records, then they wouldobviously need to protect that.
(22:47):
So you can see how that canwork and it doesn't really
impinge upon the main brand nameand its reputation.
Who owns that?
Speaker 4 (22:56):
yeah, um.
So I flagged up some sort ofrather well, not necessarily
obscure, but some uk uhtrademark um office disputes.
So the first one is involves thegroup modern romance, if anyone
(23:18):
remembers them, yeah I have tosay I do I do like modern
romance, not not necessarily ifyou remember the song I, I, I, I
moosey I didn't really enjoythat but on, I think, on their
one and only album there's a fewdecent sort of funky tunes.
(23:40):
One's got a French womanrapping on it, which is rapping
in English, which is amusing tosay the least.
The ex-lead singer, a guycalled Jeffrey Dean who had
worked on Smash Hits and I'msure we're all of that vintage
(24:01):
that we remember Smash Hits.
So they'd applied.
He'd applied, with someobjected, saying you know, he
hasn't been in the band for ages, what's he doing?
(24:21):
And, in a nutshell, theapplication to the opposition I
think it was was successfulunder the law of passing off
Because this guy hadn't beeninvolved with the band for years
and was just beingopportunistic to to then try and
(24:42):
do concerts under the under theband name.
Um.
So that's an interesting one,not least because we found you
know one of my guilty pleasureswhich is modern romance.
I guess procol harum is more youknow everyone's of my guilty
pleasures, which is modernromance.
I guess Procol Harum is more.
You know everyone knows ProcolHarum, white or shaded, pale,
absolute classic.
(25:03):
And if anyone disagrees I'lldrop off the podcast now.
But there's a trademark disputebetween members of the band and
basically one tried toinvalidate the registration that
the other owned and it wasunsuccessful.
(25:26):
So gary brooker was theapplicant to invalidate and the
keith reed was the owner.
I haven't re-read the decision,but it's basically to do with
you know who was still tradingas Procol Harum.
Was there any agreement?
(25:47):
I'm pretty sure there was nowritten agreement, and that's
the theme, isn't it?
Where you get together it'slike yeah, we are genius, id, we
don't need no bleeding contract, let's just get out there and
rock it.
Speaker 1 (26:02):
We were a little bit more advanced than that.
We had a joint bank account inall five of our names and I and
I and I know because I still getthe statement comes to me
everywhere it goes to my mom anddad's house because that's
where I was living at the time,obviously, um, and we are still
the prince, the owners of thefive pound each that we put in
back in 1980 or whenever it wasum, and that's what that's still
in there so I wonder if there'sstill some residual goodwill
(26:23):
floating around in relation tothis band name, because that's
another interesting point.
Speaker 5 (26:28):
An example the Eiffel Duda band.
Chris, you a fan of them?
Not really.
I am an urban spaceman.
No, no, I didn't think you were.
Well, I?
Speaker 4 (26:35):
don't mind urban spacemen, but they're just a bit
too kind of whimsical.
Speaker 5 (26:40):
They're also, yeah, whimsical and comedic.
I whimsical, they're also, yeah, whimsical and comedic.
I think they did some stuffwith monty python things.
Yeah, what happened to them wasthat they disbanded years ago
and a former promoter or managerperson registered a mark which
had their name in it in themid-teens and they wanted to
reform and discover that thisregistration was there and cause
more problems, so they tried toinvalidate it.
(27:02):
What was interesting ininteresting in that case was
that they still had someresidual rights, despite the
fact they hadn't used it for along time.
So one of the aspects oftrademark law is that if you
don't use a registered trademarkfor five years, it can be
revoked for non-use.
So there's this sort ofprinciple in trademarks that if
you don't use a mark for a longtime, you sort of lose it, even
(27:22):
if you're talking about commonlaw rights.
You might have used it in the60s and 70s, but you know, once
it's all dissipated who reallyowns anything.
But in that case it was quiteinteresting because they could.
They could basically say, yeah,we have, we do have residual
rights in this, even though theygo back a long way.
It's something that I seem tocome across a lot in my practice
because we represent people whohave old car names, car brands
(27:42):
that aren't being used to sellcars at the moment.
But they might have not sold aSunbeam car for 30 years, but
there is still rights in that.
And that does come up in bandsbecause the band, even though
they might not be bringing outnew stuff, if they can
demonstrate there's stillstreams, there's still downloads
, people are still buying thealbums.
Then, effectively, there'sstill use.
So all this stuff does go backquite a long time and if a band
(28:06):
has a good reputation then itcan be festive for some time,
which is something that's quiteparticular to this particular
subject we're talking about inTrademarks, because it doesn't
really go across otherdisciplines in this area.
Speaker 1 (28:19):
So let's go back to the Smiths example.
So Morrissey registered.
Johnny Marr registered.
The Smiths example, soMorrissey registered.
I don't know Morrissey.
Johnny Marr registered to theSmiths in 2018.
He's not toured as the Smiths,he's not produced any music as
the Smiths.
He's six years on, so couldMorrissey just do him under lack
of use?
Or is the fact that the Smithsstill exist in terms of their
music enough?
Speaker 4 (28:48):
I mean I'd hate to go on the record and say do it,
morrissey.
Um, he's not okay.
No, he might be.
He.
Speaker 5 (28:51):
This, this might reach him you're an old pal of
lee's, isn't he?
So I'm sure he is I, I, I'dimagine that's.
Speaker 4 (28:59):
That's pretty much nailed on, but so the the
primary issue is is is whetherthe owner and that the owner of
the smith's registration is thecompany of which johnny marley's
wife, I guess the directors.
So it's whether there's beenany use by the owner or with the
(29:22):
owner's consent in in the pastfive years.
When someone applies to cancelum and I, I don't know who puts
out the smith's back catalog,but it's probably not johnny
marr.
They were on rough trade,weren't they?
But yeah, they were on roughtrade, weren't they?
Yeah, they were yeah.
(29:48):
So I think it would be.
I mean, there may be someagreement that you know, between
the company that currently putsout the recorded output and
Johnny Mar and Morrissey.
I think the other two are dead,aren't they?
Speaker 1 (30:09):
No, no, andy Rock died last year.
Speaker 4 (30:11):
Sorry, Andy, if you're listening.
Yeah, rumours of your demiseare greatly exaggerated.
Speaker 1 (30:18):
But Mike Joyce is still very much alive and still
very much living on theroyalties that he now gets a
quarter share in.
If you remember, he famouslytook yeah in my talk to um
secure that.
Speaker 4 (30:27):
But yeah, no, but still alive so, looking at
officialsmithscouk, the lastthing that was put out was a
deluxe edition of the queen isdead 2017.
Copyright warner music uklimited.
Speaker 5 (30:46):
so it you know, obviously with kind of talking
slightly in the dark, um, andyou might say, big mouth strikes
again, uh I think the importantpoint to just reinforce is that
you can only invalidate atrademark registration for
non-use once it is more thanfive years since it was
registered.
So I don't think that wouldapply right now, but say, time
(31:09):
passed and we reached thatanniversary date.
Then, lauracy, that was one ofthe things that he could do.
He could apply to revoke it fornon-use.
But in terms, if he wanted toregain some control or some
ownership, then he would have acause of action by bringing what
you'd call an entitlementaction, I suppose, or a joint
entitlement action.
So he could apply at the UKIPOfor the mark to either be
(31:29):
invalidated and refiled orperhaps even partly assigned to
him.
I don't know whether the UKIPOcould actually issue a ruling
like that.
I suppose it could.
Speaker 4 (31:38):
Yeah, rectification yeah.
Speaker 5 (31:40):
His argument would be that he has at least a joint
right to that name, and I thinkhe could probably put together a
very good and convincingargument that that was the case.
It would be somewhat complexand you'd need to have evidence,
so that evidence would have tobe compiled and it would be a
fairly serious case.
But I think he would have apretty good argument that he has
at least a joint proprietorshipright to that so that he could
(32:03):
end up as a joint proprietor onthe register.
And joint proprietorship asChris was mentioning earlier,
how it works is you don't ownhalf each.
You both own the whole thingand you both have the right to
use it, but neither has theright to dispose of that
registration without the consentof the other.
So it means they couldbasically tour separately, which
would be slightly weird, whichis why you would need an
(32:27):
overarching agreement that said,yeah, we do own it on a joint
proprietorship basis, but wewill only use it collectively
together and if you leave you'llbreach the contract or
something like that.
So there is definitelysomething he could do, and it
kind of surprises me that, withall the publicity he generated,
that nothing seems to havehappened.
I don't know whether he'sappointed anybody and he's
actually going to do somethingabout it.
But there's also this, thisother issue which floats around
all major, famous brand names,which is what is the publicity
(32:48):
going to be if you do somethinglike this?
You know a lot of big brandsget into trouble by taking
action against smaller partiesand it really backfires.
And does this band's legacy dothey want their legacy to be
that they're almost as wellknown for fighting over the name
than their music?
Probably not.
You know, morris is probablysat there going I'm not going to
do anything about this becausewe're not.
We're not actually recordingnew music, we're not touring
(33:09):
with me.
It's better to just leave itlive.
Everyone knows I was upset aboutit.
I've had my say maybe justleave it there.
It doesn't affect his royaltiesor anything like that.
You know there's no question ofthat.
So he's not being.
You know, I don't think he'slost out to the extent that he
perhaps would like to have saidhe has, but maybe that you know
you could take some interestingadvice here as to what would be
the best course of action formorrissey.
I mean, if it was me, I'llprobably say just don't do
(33:31):
anything, um, and if you want torevoke it in five years when he
hasn't used it, then just quitedo that on the quiet.
You know something like that.
But if you end up with some bigdispute and john Marr decided
to defend it and you ended uphaving some sort of hearing
where they were arguing over whowas who had the biggest right
to this name, who wasartistically the most creative,
and that sort of thing, it'sjust be dreadful.
Speaker 1 (33:51):
I should think you just you don't want to see all
that, being a smith's geek andwe will finish on the smiths
because I know both of you gotsome other things that you would
like to talk about and we'venot got a huge amount of time
now but being a big Smiths geek,100%.
Johnny Meyer created the band.
He gathered Morrissey, Rourke,Joyce, together created the band
that's all known in Smithfolklore and Morrissey created
(34:12):
the name.
The name is Morrissey'sInvention and that's hugely well
known and I think why he was soannoyed by it because in his
head the Smiths is him, thebrand was his invention I mean
it is a bit like.
Speaker 5 (34:26):
I mean, if I can very , very briefly mention, there's
another example going on at themoment, which is a similar thing
, related to fun lovingcriminals, where there's a uk
trademark registration that wasuh, filed in 2021.
That belongs to um the membersof the band other than the most
famous one, huey morgan and itcame about when there was a sort
of acrimonious, rather publicsplit up of the band and the
(34:49):
others went ahead and registeredit.
And you know there's a lot ofsort of bad feeling going on and
you know Huey Morgan's positionis that he's the most famous
one and that the others don'tamount to much and it's all
rather unsavoury.
And you know it's not.
You know you don't really wantto see that sort of thing going
on, but it's a very, verysimilar example.
There's the Smiths one, wheresome band members have obtained
(35:09):
this registration and the otherband member didn't know anything
about it and got very, veryupset about it and feels very
emotional, like well, you'retaking me for a ride, you're
taking something from.
Again he would have a verysimilar kind of case to
Morrissey.
It's like, well, he couldprobably apply to either have it
cancelled or have it rectified,so he has joint proprietorship,
or something like that becausehe would be able to put his own
(35:37):
case together of his influenceand association with that band
name.
So any other interestingexamples you found in your
search.
Either of you before we um,before we move too close.
Well, I was at.
One point I just wanted to makewas, as with all trademarks, um
, if you're going to choose one,you need to make sure that
you're you're free to use it andthat you are not going to run
into anyone else's earlierrights.
So if you're choosing a bandname, always do a trademark
check first, because otherwiseyou just end up having to
(35:58):
rebrand if you like, change yourname.
And there was one very famousexample of a poor, unfortunate
band called easy life, which Ithink we've all seen the news in
the last couple of years.
Who um were the subjects of anaction brought against them by
easy group, um, the company thatruns easy jet, because they
have some easy liferegistrations which are part of
their branding I don't knowexactly what they use it for and
(36:18):
they forced this poor band tochange its name.
And it didn't reflect very wellon easy group that they would
do something like this.
But had Easy Life gone to atrademark attorney at the
beginning, just like anybusiness, and said you know,
we're thinking of calling ourband this.
What do you think A brieftrademark search might have
revealed a potential issue.
That's a slightly side onebecause you're not looking.
You know Easy Group are not aband, but if a trademark
(36:44):
attorney like me is asked tocheck on the availability of a
band name for entertainmentservices CDs or downloads or
whatever you know you canquickly check that.
So, just like with any business, you know you should do your
groundwork first and youobviously want to pick a name
that resonates to your targetaudience, you know is super cool
, you know reflects who you areGenius Id example.
Fantastic example of awonderful band name.
So you've got to, you've got tohave, you've got to satisfy all
(37:08):
those requirements, but thesame time you can do that at the
same time as making your legallife easy by checking first.
So advice to anybody out therewho's thinking of naming a band
don't just pluck something outyet.
It might be worth just having aquick chat with your local
trademark attorney.
Speaker 4 (37:19):
Yes, and there's, there's so many bands, uh, over
the years who have had to takekind of, uh, drastic action.
So if you remember the beat umin the us, they had to call
themselves the english beat toto distinguish themselves from
(37:40):
who knows the american beat.
But, um, it's.
It's funny, isn't it?
Because I think from atrademark perspective you'd
probably say, well, is the wordenglish enough to distinguish,
but you never know, you neverknow what went on in the
background.
So a couple of cases, um, whichI also located.
(38:03):
One involves Buck's Fizz and,for the record, I'm not a Buck's
Fizz fan.
Speaker 5 (38:10):
No, I thought that would be right up your street.
Speaker 4 (38:12):
What Buck's Fizz?
Speaker 5 (38:14):
Yeah, it's a bit more laid back and guns raised.
Speaker 1 (38:16):
Chris.
Come on, make your mind up.
Speaker 5 (38:22):
Put that skirt back on lee exactly.
Speaker 4 (38:26):
So this, this is a trademark opposition, but at the
time there were there were twoversions of bucks fizz touring,
so it really ties in with thethe whole kind of you.
You know, what are puntersactually paying to see?
And it was the original BucksFizz versus Bucks Fizz.
(38:49):
And I think this case was itwas the fact that in the
original Bucks Fizz there wasonly one original member and the
UKIPO said well, it doesn'tmatter that there was only one
original member, they are stillthe original version and you're
just a kind of you know, johnnycome lately or fizzy come lately
(39:14):
.
Um, so it just, you know, itshows that it doesn't matter
what you think of a band interms of how good they are or
how bad they are.
You know, there's still anaudience for so many different
strands of music, particularlynow with these kind of best of
the 80s, 90s, whatever tours,where someone gets rolled on,
(39:39):
you know, to Powell for one songand then it's over to Nick
Kershaw or something.
So the other one is probably abetter known band, the Three
Degrees, and that's a UK IPOopposition decision and again,
(39:59):
it needs a proper read.
Again, it needs a proper read.
But it's basically someone whowas never in the original lineup
, was applying to register.
I think the Three Degreesfeaturing Valerie Holliday, and
someone who had been in aprevious version of Three
(40:24):
Degrees opposed it, saying itwas passing off and bad faith,
some of the kind of stuff thatcomes out of the submissions and
evidence.
You know it's like so-and-so.
She doesn't even have apassport, she's never left the
US, so she's never left the us,so she's never gonna tour in the
uk.
(40:44):
But it shows that you know youthink about modern romance bucks
, fizz, brokel, harem, threedegrees, the smiths.
You know there's a lot of um,heartache, uh, over something
that I think, if you adopted asort of business head towards
(41:07):
the outset would would probablynot not happen so I think we're
coming to time, guys, um can wedo what?
Speaker 1 (41:18):
an encore, no, sorry I think too many of you up
against the hard.
Stop me and you me, and youcould carry on, chris, but we'd
have to rebrand the podcastpresumably.
Um, I won't let that happen I'mgonna come after you.
That's my entitlement from fromtwo peas in a pod yeah, but we,
um, we always try and end upwith a sort of loosely connected
(41:40):
but probably tangentialquestion, and I've got one.
I'm gonna.
I'll ask it to neil first andthen I'll roll it around the
rest of you.
Um.
So, neil, yeah, I know you're abig music buff.
Your task, if you're up to it,is to from from the bands or or
kind of artists that you like.
Yeah, which is the most obscure, and the test of that is has
the others of us ever heard ofit?
(42:01):
But they need to actuallyrecord it and put stuff out,
yeah, so you can't come up withsome random that you heard in a
pub once.
So what's the most obscureartist on your playlist?
Speaker 2 (42:12):
um, how about?
The comet is coming, how aboutthe Comet is Coming.
Speaker 1 (42:19):
Never heard of them?
No, never heard of them.
I have heard of them.
No, you haven't.
Speaker 4 (42:23):
I have heard of them.
Speaker 1 (42:24):
And he likes them.
Speaker 2 (42:25):
Shabba Gahatjian's on saxophone.
Nell Gonçalo plays flutesinstead of the sax.
Speaker 5 (42:30):
Does it have a French lady rapping in English on it?
Is that why?
Speaker 2 (42:35):
They could add that element.
Speaker 1 (42:38):
It might be good.
I'm guessing that's areasonably decent enough name to
protect.
Is it?
That's got enoughdistinctiveness?
Speaker 4 (42:44):
Definitely, definitely.
Speaker 1 (42:47):
Let's try you then, Chris.
What's in your kind ofcatalogue?
Speaker 4 (42:50):
Oh God, I mean, my music taste is so We've got that
, don't worry, yeah't worry,yeah, yeah, yeah, you can insert
your own punchline there.
I, I would say some of the um,some of the 80s, uh, sort of new
romantic aberrations that Istill like um from that era,
(43:16):
just because of you know,nostalgia.
But there was an outfit calledum our daughter's wedding.
Anyone that ring any bells?
Oh good, check out lawn chairs.
I think it was their only hit,so it went.
Lawn chairs, lawn chairs areeverywhere in my mind.
So, yeah, that I think that'sand I do.
(43:39):
You know, I've got one of thosecompilations that it's on, so
it it comes around now and againhow about you, joey?
Speaker 1 (43:48):
what's your um well?
Speaker 5 (43:49):
I'm going to mention something that I know none of
you have ever heard of, and theonly reason I'm going to mention
this is because, um, applemusic does this amazing thing
where, at the end of the year,it sends you like an email.
I can't remember how I receivedthis, but it was like a set of
stats about how much you'dlisten to, which bands you'd
listen to the most, how manysongs you'd listen to, how many
songs you'd listen to.
It was really interesting, kindof like a Google presentation
(44:11):
or something.
But the band I listen to morethan any others is a band called
Clearways, which is sort ofambient music, and I just and
what happened was I was havingsuch a stressful time at work
that I was putting it on in theafternoons when I just needed to
get on with my work, becauseit's got no vocals in it and
(44:33):
it's just ambient music.
And it turns out I listened toit for hundreds and hundreds and
hundreds of hours.
Oh my goodness, I can't believe.
And the reason none of you haveever heard of it is because
it's basically my brother uh, mybrother's musician, so it's one
of his band names, so you canlisten to it.
I'd highly recommend it forthose stressful afternoons where
you just need some music tocalm you down but not to
distract you.
That's what it's designed forand it is available on apple
music and spotify and everythingelse.
So it's quite a difficultquestion that you asked there.
(44:55):
I I was sort of racking mybrains thinking through all the
different areas of music that Ilike, whether it's metal, grunge
, dance music, jazz I like allsorts of things.
Yeah, my music taste can't becategorised.
It's just literally anything,even country music.
I've got a playlist for countrymusic.
Speaker 2 (45:11):
I didn't have you down as a metal fan, gerry, I
must admit.
Oh yeah big time.
Speaker 5 (45:14):
That's how I cut my teeth on that in the early and
the mid-90s.
Speaker 1 (45:20):
Let me chuck one in then to close the podcast.
And I'm not worried that Chriswill have heard of it, because
I'm going 80s as well and Istill listen to them weekly.
They're one of my treadmillbands to listen to, but I'm
hoping you've not heard of themso 80s guitar band the.
Immaculate Falls.
No, wow, there you go.
Well, well worth a look up.
(45:42):
The Weatherall Brothers and twoothers whose names I can't
remember who were, yeah, I thinkmaybe three albums, moderate
Chances no one's ever heard ofthem, and I still listen to them
today.
Speaker 4 (45:54):
Nice one.
Speaker 1 (45:55):
I'm conscious we've got to wrap up, so thank you
both for coming on.
Neil, thank you for standing infor Gwilym.
I'm conscious it didn'tactually get many words in
edgeways, but Gerry and Chriswere just running out of time,
weren't they?
Speaker 5 (46:07):
It really wasn't like having Gwilym in the room.
Speaker 1 (46:12):
No no, he's.
All I need to say before weclose is if you listen to the
podcast and you found itinteresting and engaging, leave
us a little review somewhere onthe podcast podcasting platform
of your choice, and then otherpeople find us.
Thank you very much Outro Music.
Neil, hello, Welcome back as co-host of the podcast.
I've not had you on for alittle while, mate.
Hello, mate, Good to see you.
Yeah, I've seen you all week,of course, because we've just
both got back from a rathermagnificent CIPA Congress our
most attended yet and probablyone of our most compelling
themes.
Having spent the whole daylooking at the UPC, which was
rather insightful, wasn't it itwas great we had UPC judges.
Speaker 2 (00:22):
We had visitors from around the world.
Rather insightful, wasn't it?
It was great we had UPC judges.
We had visitors from around theworld.
We did as far as Australia, noless.
Speaker 1 (00:28):
Yeah, australia, the States WIPO were there, which
was rather cool.
So, yeah, it all wentbrilliantly, thanks to the
organising committee and,obviously, the hard work of the
super staff.
Have you been up to anythingsince I saw you on the plane
yesterday?
Speaker 2 (00:43):
Sleeping mainly.
Speaker 1 (00:44):
It's much the same, mate, much the same.
It does take it out of you,doesn't it?
It's amazing how much a coupleof days away, conference
delivering does take it out ofyou.
It's great to have you on thepodcast today because you're a
great music buff, aren't you?
Speaker 2 (00:57):
Yeah, I'm looking forward to this one.
Speaker 1 (00:59):
Yeah, I thought you might be.
Speaker 2 (01:06):
Go on, who's your fave?
Remind me again.
Well, we're talking abouttrademarks and band names,
aren't we?
My great hero is frank zapper,and there's a bit of a band name
related to him because his bandwas the mothers of invention.
But he had to extend the namebecause he originally called the
band the mothers, but that wasdeemed a bit too risque back in
the 60s given the connotationsof that word.
So he changed it to the mothersof of Invention for the, I
think the record company forcedhim to do that.
Speaker 1 (01:28):
I'm a big fan of the Smiths, or was a big fan of the
Smiths.
I met Morrissey, of course.
So I met all of them, butMorrissey is the one that stands
in my mind because he told ourband that we should we should
give up call it a day because weweren't good enough.
So that's my abiding memory,memory of when we appeared at
the same venue back in 1981 or82, or whenever it was
(01:49):
Portsmouth PolytechnicUnbelievable but true.
Unbelievable but true.
I might even give away our bandname when we get into the
conversation with our guests,because it's too long gone now
and obviously we never madeanything of it, but I'd still be
interested to know whether wecould have done anything to
protect it, and maybe I stillwill.
Speaker 2 (02:09):
Lee Davis and Gwilym Roberts are the two IPs in a pod
and you are listening to apodcast on intellectual property
brought to you by the CharteredInstitute of Patent Attorneys.
Speaker 1 (02:27):
So let's bring our guests on first.
Let's go to Chris first.
Chris, introduce yourselfplease, if you wouldn't mind.
Speaker 4 (02:32):
Yes, good evening or good morning.
The interweb, chris McLeod.
I am a partner at Elkington andFife.
I run the trademarks team.
I'm also responsible for thehilarious trademark of the week
(02:52):
post on LinkedIn and I adviseyou strongly to look out for
that every Friday.
Today's is sort of borderlinein terms of bad taste, but I've
seen a lot worse.
Okay.
Speaker 1 (03:12):
I'm a bit aged right after this recording.
Speaker 4 (03:16):
So that's me, and a big music fan have been for
decades and decades, althoughI've never heard of Lee's band
and I've never met morrisseythat's to your advantage, and
I'm always a big fan ofmorrissey.
Speaker 1 (03:32):
Uh, jerry, welcome to the podcast.
Welcome back to the podcast.
Speaker 5 (03:34):
I think we should say , um, remind us who you are, sir
yeah, before I start, let mejust pick up this massive name,
drop off the floor and give itback to you.
Yes, so I'm Gerry Bridge-Butler.
I'm a partner at Baron WarrenRedfern.
I lead the trademark team here.
Like Chris, I'm dual qualified,so patent attorney and
trademark attorney.
(03:55):
I'm also a massive music fan,just like everybody seems to be.
I think it's a generationalthing.
I'm always rather disappointed.
My children don't seem to likemusic as much as I do.
But it's been really interestinglooking into this question of
band names, and a lot of theband names that come up are all
quite old and very wellestablished names that everybody
knows.
(04:15):
But you're going back quite along time with a lot of this
stuff.
But it just seems to be thatthere was something a lot more
rock and roll in the past.
Bands split up because theywere way more rock and roll.
There was something a lot morerock and roll in the past.
Bands split up because theywere way more rock and roll.
There were lots of argumentsand shouting and of course they
didn't care about registeringtrademarks and stuff like that.
Oh, that's terribly not rockand roll at all, is it?
So maybe these days, withmanufactured bands, that doesn't
(04:36):
happen at all.
But if you're talking about,you know, the Smiths, pink Floyd
, beach Boys, deep Purple, allthose sorts of things, you know
they're way more rock and rolland I think it probably reflects
well on them in that respectthat they end up falling out
Brilliant.
Speaker 1 (04:50):
Yeah, yeah, yeah.
No, I'm sure you're right.
I think music existed afterabout 1992, didn't it?
Really, that's the generalconsensus.
It does with the conversationsI have with my children,
although as they get older, Ifind they seem to like what you
like, and I don't know if that'sjust because they've had it
played to them so much that it'searwormed into their brains, I
(05:12):
don't know.
Anyway, we're here actuallybecause of a conversation I have
with Chris and I have withGerry on LinkedIn, immediately
in the aftermath of Morrisseyhaving one of his
all-too-regular rants, this timeagain, about Johnny Marr saying
(05:32):
how Marr had gone away andnicked the Smiths' name by
trademarking it and he wasreally angry about it.
This goes back just to kind ofa couple of months ago.
This year transpires that, infact, marr had registered back
in 2018, and Morrissey had onlyreally just woken up and found
out and he had done itprotectively because the name
was starting to be, um,trademarked for other uses, uh,
particularly in digital gaming,and it actually involved
(05:53):
morrissey solicitors in that,and the joint ownership aspect
was just waiting for morrisseyto sign a document.
So, um, as he tends to do whenhe goes off on one um made made
a little bit of a um fool ofhimself, but then he do.
When he goes off on one made alittle bit of a fool of himself,
but then he did.
When he said that our bandcouldn't play either, because
clearly we could, it might havebeen fair to say that I couldn't
sing.
That probably was a fairstatement.
(06:15):
So where should we start off?
I mean, I'm conscious thatquite a lot of people listening
to this will not be Trey Buckattorneys or like Jerry, or
maybe not be attorneys might belistening to this either because
they're just followers of thepodcast for its ip angle, or
because it's got the wordsmorrissey and mar in the little
teaser that were put out, whichmight attract a uh an audience.
(06:36):
So perhaps, as I'll start withyou, chris, if that's okay, just
perhaps a little bit of generalgen on trademarks generally, if
that's okay, yeah.
And then we're working to whythey might be important for
bands and why bands historicallydidn't protect them.
Speaker 4 (06:51):
Yeah.
So I guess the premise is thathaving a registered UK trademark
gives you a monopoly right, andthat monopoly right is pretty
extensive, or at least it can be, so it protects the identical
mark, but also similar marks,and then identical products and
(07:17):
services, and also similar goodsand services, and possibly
goods and services which aren'tsimilar, if you can show
sufficient reputation.
So it's a very cheap andpotentially powerful tool and
then, in tandem with that, youcan build up use-based rights
(07:39):
which could be enforced undercommon law at passing off.
So, for example, you know lee'sband, I don't know what the
name is.
Speaker 1 (07:50):
You're gonna, you're gonna tease it was.
It was genius id genius id.
Speaker 4 (07:54):
I mean that's that's inherently very pretentious,
extraordinarily pretentious it'sinherently distinctive, though,
but so, from the, from the daywhen you started, uh, the band,
you would be generating goodwill, which which isn't an
assessment of the quality of theoutput, but it just means that
(08:17):
you start to build up protectionwhich you could enforce against
.
You know an upstart band calledId Genius or something like
that.
So you've got these two rightsthat are often pleaded together,
(08:37):
but you don't.
You don't need to be using yourmark until it gets to five
years on the register.
At that point, someone couldcome in and attack it.
I don't know if Gerry wants toadd a gloss to that.
Speaker 5 (08:54):
Well, I think I'd just maybe take an even bigger
step back and just say whattrademarks actually are.
They are signs that aredesignators of origin and
they're supposed to avoid,prevent confusion.
So if you see a trademark andyou recognize it, you know where
that product comes from, um,and if you see a different
trademark on a different product, you know that comes from
(09:15):
somewhere else.
So that's where the wordbranding comes from branding
cattle.
So this is my cattle, this iswhere it comes from.
So when you're talking bandnames, if you see a band name on
an album, you know who madethat music because it's that
band.
So when it comes to sort ofavoiding confusion here, it's
all about when bands break apartand which is, which is the band
(09:38):
?
Is it this one over here or isit this breakaway person over
there?
And if you've got two peopleusing the same brand name, what
actually happens is confusion.
And that's what trademark lawis all about.
It's about preventing confusion.
So that's what a trademarkregistration is for you obtain
it and it gives you the power toprevent that confusion
happening.
So if you have the band nametrademarked already and it's all
nicely controlled, then ifsomething like this were to
(10:00):
happen and someone were to gooff and start using it
themselves a former band member,for instance you can take
action and you can stop it, andthat's how trademark law works.
So with the Smiths example, itwasn't a registered trademark.
For all the years that theywere famous they didn't bother
to register it as a trademark.
Because if you're selling breador violins or something, then
(10:20):
you've got a business that makessomething and sells it, and so
getting a trademark registrationis something that most people
do do and it's at the forefrontof most businesses' minds.
But it's very difficult totranspose that thinking across
to an artistic endeavour like aband.
Band members don't think aboutregistering trademarks because
it's all.
As I said before, it's all rockand roll, isn't it?
But then the problem comes whenyou have a falling out.
(10:41):
It's like, well, now we'vefallen out, now who owns this?
And it always well, I was goingto say it surprises me perhaps
it doesn't how emotional, um, alot of my clients get when it
comes to trademark disputes.
It's a very sort of simple,sort of legal thing we're
talking about.
But if you talk about, you know, artistic people in a band, one
member of a band sees anothermember of a band registering the
(11:02):
trademark.
That is absolutely infuriatesthem because they think they're
being taken for a ride.
And that's what happened here,as you pointed out.
There might not actually havebeen an issue but, because there
was a lack of communication,you had one person registering
it saying I own this, I controlthis, I'm the one who's
controlling this marketplace.
And there's already confusion.
Poor old Morrissey's out in thecold saying oh no, hang on a
(11:23):
minute, why have I been left outof this and that's where you
get a dispute arising.
Speaker 1 (11:30):
Can I just add a sort of further element or question
in there?
Would it be possible?
So go, go back.
Let's just stick with Smithsfor the moment, because it's the
example we started with, andthen we'll go elsewhere.
Yeah, they did.
They didn't register anythingduring their actual kind of
productive years.
Could the music company haveregistered it?
Could?
Could someone else of who wasinvolved in that kind of output,
if you like, have registered itand therefore prevented them
(11:51):
from ever using it other thanunder the auspices of um, that
record company or whatever itmight be?
Speaker 5 (11:58):
well, the answer to that is is yes.
I think the very modern way ofproducing uh music is to do it
in that manner.
It's a lot more controlled by arecord company or a producer
like Simon Cowell or somebodylike that, who will manufacture
a band and then all the legalswill be tied up very nicely and
the record company will controlit.
So you know, something like OneDirection, for instance.
(12:18):
You know that is almostcertainly not owned by the band
but owned by the production, andthere's going to be similar
examples of that.
I mean, I came across oneexample where a band had sorted
itself out properly and was ableto control the situation, and
that was the Stone Temple Pilots, a grunge band from the US.
So this was a case that wasunder US law.
But the former singer, scottWeiland, or Weiland, or however
(12:41):
you pronounce it he basicallyleft the band and they went off
and started singing, you know,and pretending to be Stone
Temple Pilots.
But they were able to sort itout very rapidly because they
had a proper agreement in place,they had trademark
registrations and they put anend to it sharpish, and that's
what the ideal that you'd belooking for.
So I guess, if you consideredproducing music a bit like
producing a book.
If you look at publishing,companies know they register
(13:02):
trademarks, they get everythingsorted out, it's all legally
sorted out.
Um, so the modern way of doingit would be probably very much
along those sorts of lines.
But I think perhaps a slightly,you know, a more interesting
question.
Maybe chris can answer this.
But if you are a band now andyou're not necessarily at a high
level, but you're forming theband and you're thinking about,
well, how best should we, youknow, what would be the best
(13:24):
advice to give you know a groupof youngsters in terms of just
making sure that they sort itout so that the future doesn't
hold any disputes?
Speaker 1 (13:33):
That's a great question, chris.
So the now 15, 16-year-old mehas come to you saying we've got
this band.
It's called Genius Id.
What do we do?
Speaker 4 (13:48):
Well, I would follow the same line that I take with
more, you know, wealthierclients.
I'm not suggesting you're notwealthy, you've got, obviously
got a piano which I don't have.
Is it a piano or is it a bureau?
It's a piano, good, good, Idon't play.
Ah, good, um, yeah, I would say.
I would say, do it because it'srelatively cheap, and do it in
(14:14):
the individual names of each ofthe group, and then if someone
leaves, then you have someagreement which sort of says
that if someone leaves, thenthey give up their share of the
trademark.
(14:34):
I think Coldplay are a arereally I wasn't going to say
interesting band and actuallyI'm not a cold play basher, I
don't mind them, um, but they,I'm pretty sure their trademark
is owned equally by the fourmembers and their publishing
deal is unusual in that it'ssplit equally four ways.
(14:56):
So you know, and I thinkthey're probably a good example,
they've definitely registeredtheir trademark.
But certainly I would say getin there early, register, and
then really the issue goes away.
If you don't make it, you justdon't renew the mark.
If you do make it, then you'reprotected.
Speaker 1 (15:16):
So but can I?
Can I come back on something?
So in your um introductorycomments you said about uh uk
registered mark, uh music'sglobal, isn't it so?
Um, so how fast?
How far should the extent ofyour protection go?
Should you be thinking abouteurope?
Should you be thinking aboutthe world?
Speaker 4 (15:32):
yeah, but that that's that's when you do start to run
up costs, because, okay,getting euy protection is
relatively cheap and maybe awipo international registration
could pick off the us etc.
But it it just becomesexpensive.
So I think you know, perhapswhen they get their first
(15:56):
advance um, then you know theycould look at extending
protection outside the uk.
But I don't know if you've beenwatching this I think it's
called paid in full a bbc two,three parter about specifically
the black music industry and howbig record companies have
(16:21):
systematically ripped them offfor decades.
It is, it's fascinating.
I mean there's a clip of tlcopenly saying at the grammys
that you know we've had x numberone hits and we are broke.
What is going on, um?
So yeah, I think you know,register the mark and then if
(16:44):
you get a deal, you know you cantalk to the record company
about licensing it to them.
So some models now are owneverything and license it and
then if the deal goes south,then you retain your rights to
some extent Obviously not all ofthem, but you keep your
(17:06):
trademark.
Speaker 5 (17:14):
I mean, a really good example of a slightly
alternative way of dealing withthat is to rebrand yourself, and
there's a really famous exampleof somebody doing that, and
that's Prince, who rebrandedhimself as Cymbal or the artist
formerly known as Prince, sowashing his dirty, washing in
public very much, and that wasobviously an example of him
feeling like he didn't actuallycontrol the brand name Prince or
the output of Prince, or it wasa dispute with his record
(17:35):
company about how much output hecould put out.
Um, so you know, it's aterrible situation to be in, but
someone of his fame was able toalmost get away with it.
He was so famous he could getaway with a re, one of the
world's most famous rebrands amuch better rebrand, I would say
, than rebranding Twitter to X,which I think is one of the
worst rebrands of all time.
But it just shows that therewas obviously a dispute that
(17:59):
arose there because of whocontrolled it and an artist
feeling like, well, hang on, I'mthe artist here, I'm the one
who's actually built thereputation in this brand name
because I'm the one writing themusic, but I don't control this
name, I don't control how muchoutput I can put out.
I'm losing artistic control.
So what am I going to do?
I'm actually going to rebrandmyself, which is a pretty
astonishing thing to do, and Iseem to recall him actually
(18:21):
appearing on Top of the Popswhen I was younger, with a cloth
across his entire face, so youcouldn't even see his face.
He's saying you control myimage, you control everything.
This is terrible.
I'm not even going to show myface.
So you obviously don't wantthat to happen.
But unless you're enormouslyfamous, you can get away with
actually making yourself morefamous by rebranding.
Yeah, you wouldn't wantsomething like that.
(18:42):
I think I just pick up on acouple of points that Chris made
about, you know, protecting themark around the world.
As Chris points out, if you'reregistering trade parts in lots
of different jurisdictions, itgets hideously expensive.
But one thing to just mentionin contrast to patents, there is
no deadline for extending yourrights to other jurisdictions.
You can build a portfolio oftrademark registrations over a
long period of time.
(19:02):
So you can start off small witha UK application, just get the
ball rolling and then, if you dogrow, if you start selling
music in America, then registerthe mark there.
You know you can do a bit ofclearance, searching first to
see whether or not the mark isgoing to be available to you.
But there is also this otherproblem, which is an issue with
trademark registrationsgenerally, which is what do you
register a band name for?
When you register a trademark,you register it for selling
(19:25):
particular goods or forproviding particular services,
and there isn't actuallyanywhere in the trademark
classification system that saysyou know bands.
It just doesn't exist.
So you've got to register yourtrademark for entertainment
services, which is protectingyou for the live performances
and actually being a band.
But then if you want toregister it for I mean, this is
a slightly out of date thing butselling CDs and so on, that's
in class nine.
(19:46):
If you want to sell clothing,that's in class 25.
If you then want to startselling perfume and key rings
and sunglasses, all of a suddenyou're becoming almost like a
diversified brand which I thinksomebody like Coldplay if you
were to look at theirregistration probably covers an
awful lot of stuff and it buildsand builds and builds.
And you can buildjurisdictionally, you can build
(20:08):
subject matter-wise.
You can build up a huge empire,a sort of portfolio of
trademark rights associated withyour brand if you want to.
But you don't have to do thatstraight away.
You can just build it as youwent along, depending on how
famous you are I've now gotodour pink floyd going around in
my brain for some reason.
Speaker 1 (20:26):
I don't know what that smells like.
I've never been to a pink floyd.
Speaker 4 (20:28):
Pink floyd gig, probably pretty bad patchouli
oil, maybe Petulia oil, maybeOld blokes, yeah, sweat maybe.
Speaker 2 (20:40):
Do individual band members think about trademarking
their own names?
Speaker 4 (20:46):
I mean it's, yeah, it's probably.
I guess it might be worth it ifyou're you know, radiohead's
not really a great example and,by the way, I don't like
Radiohead there are things youdo like, yeah, there's loads of
stuff I do like I'm going totalk about a few of the arcane
(21:10):
cases that I've dragged out, butso Radiohead had to have that
side project.
I can't remember what they'recalled.
Smile yeah, thank you, andwhat's?
What's the singer called?
I can't remember his name.
Tony Hawk yeah, he does solostuff you don't write.
(21:31):
I told you I'm not a Radioheadfan.
Yeah, I'll die in a ditchbefore I listen to them.
Um, but yeah.
So I think if you're, if you'retrading on your own and then
putting out cds, streaming, youknow, merchandising, whatever,
(21:52):
then probably it is worth doing.
Speaker 5 (21:56):
I mean, a good example would be somebody like
Slash from the Guns N' Roses.
Speaker 4 (22:00):
I don't like Guns N' Roses, no I didn't think you
would.
Speaker 5 (22:03):
So you've got Guns N' Roses, obviously a very famous
band name, very famous brand, ifyou like.
They've had their own problemsactually with arguing over the
name because when the band splitup, axl Rose took control of it
and went off touring on his own, effectively, with other band
members who none of them were inthe original Guns N' Roses.
I had the misfortune of seeinga concert of Axl Rose with all
his other bandmates and it wasdreadful.
But it's just a good example ofyou've got somebody in a band
(22:27):
who has his own brand, even whenhe was still in the band and
because he has that sort ofrather odd name.
You know Slash, and you couldsay the same thing about Bono or
the Edge or something like that.
So those are actually separate.
You could call them sub-brands,I suppose.
But they do really belong tothose individual people and if
they went off and recorded theirown music and released their
own records, then they wouldobviously need to protect that.
(22:47):
So you can see how that canwork and it doesn't really
impinge upon the main brand nameand its reputation.
Who owns that?
Speaker 4 (22:56):
yeah, um.
So I flagged up some sort ofrather well, not necessarily
obscure, but some uk uhtrademark um office disputes.
So the first one is involves thegroup modern romance, if anyone
(23:18):
remembers them, yeah I have tosay I do I do like modern
romance, not not necessarily ifyou remember the song I, I, I, I
moosey I didn't really enjoythat but on, I think, on their
one and only album there's a fewdecent sort of funky tunes.
(23:40):
One's got a French womanrapping on it, which is rapping
in English, which is amusing tosay the least.
The ex-lead singer, a guycalled Jeffrey Dean who had
worked on Smash Hits and I'msure we're all of that vintage
(24:01):
that we remember Smash Hits.
So they'd applied.
He'd applied, with someobjected, saying you know, he
hasn't been in the band for ages, what's he doing?
(24:21):
And, in a nutshell, theapplication to the opposition I
think it was was successfulunder the law of passing off
Because this guy hadn't beeninvolved with the band for years
and was just beingopportunistic to to then try and
(24:42):
do concerts under the under theband name.
Um.
So that's an interesting one,not least because we found you
know one of my guilty pleasureswhich is modern romance.
I guess procol harum is more youknow everyone's of my guilty
pleasures, which is modernromance.
I guess Procol Harum is more.
You know everyone knows ProcolHarum, white or shaded, pale,
absolute classic.
(25:03):
And if anyone disagrees I'lldrop off the podcast now.
But there's a trademark disputebetween members of the band and
basically one tried toinvalidate the registration that
the other owned and it wasunsuccessful.
(25:26):
So gary brooker was theapplicant to invalidate and the
keith reed was the owner.
I haven't re-read the decision,but it's basically to do with
you know who was still tradingas Procol Harum.
Was there any agreement?
(25:47):
I'm pretty sure there was nowritten agreement, and that's
the theme, isn't it?
Where you get together it'slike yeah, we are genius, id, we
don't need no bleeding contract, let's just get out there and
rock it.
Speaker 1 (26:02):
We were a little bit more advanced than that.
We had a joint bank account inall five of our names and I and
I and I know because I still getthe statement comes to me
everywhere it goes to my mom anddad's house because that's
where I was living at the time,obviously, um, and we are still
the prince, the owners of thefive pound each that we put in
back in 1980 or whenever it wasum, and that's what that's still
in there so I wonder if there'sstill some residual goodwill
(26:23):
floating around in relation tothis band name, because that's
another interesting point.
Speaker 5 (26:28):
An example the Eiffel Duda band.
Chris, you a fan of them?
Not really.
I am an urban spaceman.
No, no, I didn't think you were.
Well, I?
Speaker 4 (26:35):
don't mind urban spacemen, but they're just a bit
too kind of whimsical.
Speaker 5 (26:40):
They're also, yeah, whimsical and comedic.
I whimsical, they're also, yeah, whimsical and comedic.
I think they did some stuffwith monty python things.
Yeah, what happened to them wasthat they disbanded years ago
and a former promoter or managerperson registered a mark which
had their name in it in themid-teens and they wanted to
reform and discover that thisregistration was there and cause
more problems, so they tried toinvalidate it.
(27:02):
What was interesting ininteresting in that case was
that they still had someresidual rights, despite the
fact they hadn't used it for along time.
So one of the aspects oftrademark law is that if you
don't use a registered trademarkfor five years, it can be
revoked for non-use.
So there's this sort ofprinciple in trademarks that if
you don't use a mark for a longtime, you sort of lose it, even
(27:22):
if you're talking about commonlaw rights.
You might have used it in the60s and 70s, but you know, once
it's all dissipated who reallyowns anything.
But in that case it was quiteinteresting because they could.
They could basically say, yeah,we have, we do have residual
rights in this, even though theygo back a long way.
It's something that I seem tocome across a lot in my practice
because we represent people whohave old car names, car brands
(27:42):
that aren't being used to sellcars at the moment.
But they might have not sold aSunbeam car for 30 years, but
there is still rights in that.
And that does come up in bandsbecause the band, even though
they might not be bringing outnew stuff, if they can
demonstrate there's stillstreams, there's still downloads
, people are still buying thealbums.
Then, effectively, there'sstill use.
So all this stuff does go backquite a long time and if a band
(28:06):
has a good reputation then itcan be festive for some time,
which is something that's quiteparticular to this particular
subject we're talking about inTrademarks, because it doesn't
really go across otherdisciplines in this area.
Speaker 1 (28:19):
So let's go back to the Smiths example.
So Morrissey registered.
Johnny Marr registered.
The Smiths example, soMorrissey registered.
I don't know Morrissey.
Johnny Marr registered to theSmiths in 2018.
He's not toured as the Smiths,he's not produced any music as
the Smiths.
He's six years on, so couldMorrissey just do him under lack
of use?
Or is the fact that the Smithsstill exist in terms of their
music enough?
Speaker 4 (28:48):
I mean I'd hate to go on the record and say do it,
morrissey.
Um, he's not okay.
No, he might be.
He.
Speaker 5 (28:51):
This, this might reach him you're an old pal of
lee's, isn't he?
So I'm sure he is I, I, I'dimagine that's.
Speaker 4 (28:59):
That's pretty much nailed on, but so the the
primary issue is is is whetherthe owner and that the owner of
the smith's registration is thecompany of which johnny marley's
wife, I guess the directors.
So it's whether there's beenany use by the owner or with the
(29:22):
owner's consent in in the pastfive years.
When someone applies to cancelum and I, I don't know who puts
out the smith's back catalog,but it's probably not johnny
marr.
They were on rough trade,weren't they?
But yeah, they were on roughtrade, weren't they?
Yeah, they were yeah.
(29:48):
So I think it would be.
I mean, there may be someagreement that you know, between
the company that currently putsout the recorded output and
Johnny Mar and Morrissey.
I think the other two are dead,aren't they?
Speaker 1 (30:09):
No, no, andy Rock died last year.
Speaker 4 (30:11):
Sorry, Andy, if you're listening.
Yeah, rumours of your demiseare greatly exaggerated.
Speaker 1 (30:18):
But Mike Joyce is still very much alive and still
very much living on theroyalties that he now gets a
quarter share in.
If you remember, he famouslytook yeah in my talk to um
secure that.
Speaker 4 (30:27):
But yeah, no, but still alive so, looking at
officialsmithscouk, the lastthing that was put out was a
deluxe edition of the queen isdead 2017.
Copyright warner music uklimited.
Speaker 5 (30:46):
so it you know, obviously with kind of talking
slightly in the dark, um, andyou might say, big mouth strikes
again, uh I think the importantpoint to just reinforce is that
you can only invalidate atrademark registration for
non-use once it is more thanfive years since it was
registered.
So I don't think that wouldapply right now, but say, time
(31:09):
passed and we reached thatanniversary date.
Then, lauracy, that was one ofthe things that he could do.
He could apply to revoke it fornon-use.
But in terms, if he wanted toregain some control or some
ownership, then he would have acause of action by bringing what
you'd call an entitlementaction, I suppose, or a joint
entitlement action.
So he could apply at the UKIPOfor the mark to either be
(31:29):
invalidated and refiled orperhaps even partly assigned to
him.
I don't know whether the UKIPOcould actually issue a ruling
like that.
I suppose it could.
Speaker 4 (31:38):
Yeah, rectification yeah.
Speaker 5 (31:40):
His argument would be that he has at least a joint
right to that name, and I thinkhe could probably put together a
very good and convincingargument that that was the case.
It would be somewhat complexand you'd need to have evidence,
so that evidence would have tobe compiled and it would be a
fairly serious case.
But I think he would have apretty good argument that he has
at least a joint proprietorshipright to that so that he could
(32:03):
end up as a joint proprietor onthe register.
And joint proprietorship asChris was mentioning earlier,
how it works is you don't ownhalf each.
You both own the whole thingand you both have the right to
use it, but neither has theright to dispose of that
registration without the consentof the other.
So it means they couldbasically tour separately, which
would be slightly weird, whichis why you would need an
(32:27):
overarching agreement that said,yeah, we do own it on a joint
proprietorship basis, but wewill only use it collectively
together and if you leave you'llbreach the contract or
something like that.
So there is definitelysomething he could do, and it
kind of surprises me that, withall the publicity he generated,
that nothing seems to havehappened.
I don't know whether he'sappointed anybody and he's
actually going to do somethingabout it.
But there's also this, thisother issue which floats around
all major, famous brand names,which is what is the publicity
(32:48):
going to be if you do somethinglike this?
You know a lot of big brandsget into trouble by taking
action against smaller partiesand it really backfires.
And does this band's legacy dothey want their legacy to be
that they're almost as wellknown for fighting over the name
than their music?
Probably not.
You know, morris is probablysat there going I'm not going to
do anything about this becausewe're not.
We're not actually recordingnew music, we're not touring
(33:09):
with me.
It's better to just leave itlive.
Everyone knows I was upset aboutit.
I've had my say maybe justleave it there.
It doesn't affect his royaltiesor anything like that.
You know there's no question ofthat.
So he's not being.
You know, I don't think he'slost out to the extent that he
perhaps would like to have saidhe has, but maybe that you know
you could take some interestingadvice here as to what would be
the best course of action formorrissey.
I mean, if it was me, I'llprobably say just don't do
(33:31):
anything, um, and if you want torevoke it in five years when he
hasn't used it, then just quitedo that on the quiet.
You know something like that.
But if you end up with some bigdispute and john Marr decided
to defend it and you ended uphaving some sort of hearing
where they were arguing over whowas who had the biggest right
to this name, who wasartistically the most creative,
and that sort of thing, it'sjust be dreadful.
Speaker 1 (33:51):
I should think you just you don't want to see all
that, being a smith's geek andwe will finish on the smiths
because I know both of you gotsome other things that you would
like to talk about and we'venot got a huge amount of time
now but being a big Smiths geek,100%.
Johnny Meyer created the band.
He gathered Morrissey, Rourke,Joyce, together created the band
that's all known in Smithfolklore and Morrissey created
(34:12):
the name.
The name is Morrissey'sInvention and that's hugely well
known and I think why he was soannoyed by it because in his
head the Smiths is him, thebrand was his invention I mean
it is a bit like.
Speaker 5 (34:26):
I mean, if I can very , very briefly mention, there's
another example going on at themoment, which is a similar thing
, related to fun lovingcriminals, where there's a uk
trademark registration that wasuh, filed in 2021.
That belongs to um the membersof the band other than the most
famous one, huey morgan and itcame about when there was a sort
of acrimonious, rather publicsplit up of the band and the
(34:49):
others went ahead and registeredit.
And you know there's a lot ofsort of bad feeling going on and
you know Huey Morgan's positionis that he's the most famous
one and that the others don'tamount to much and it's all
rather unsavoury.
And you know it's not.
You know you don't really wantto see that sort of thing going
on, but it's a very, verysimilar example.
There's the Smiths one, wheresome band members have obtained
(35:09):
this registration and the otherband member didn't know anything
about it and got very, veryupset about it and feels very
emotional, like well, you'retaking me for a ride, you're
taking something from.
Again he would have a verysimilar kind of case to
Morrissey.
It's like, well, he couldprobably apply to either have it
cancelled or have it rectified,so he has joint proprietorship,
or something like that becausehe would be able to put his own
(35:37):
case together of his influenceand association with that band
name.
So any other interestingexamples you found in your
search.
Either of you before we um,before we move too close.
Well, I was at.
One point I just wanted to makewas, as with all trademarks, um
, if you're going to choose one,you need to make sure that
you're you're free to use it andthat you are not going to run
into anyone else's earlierrights.
So if you're choosing a bandname, always do a trademark
check first, because otherwiseyou just end up having to
(35:58):
rebrand if you like, change yourname.
And there was one very famousexample of a poor, unfortunate
band called easy life, which Ithink we've all seen the news in
the last couple of years.
Who um were the subjects of anaction brought against them by
easy group, um, the company thatruns easy jet, because they
have some easy liferegistrations which are part of
their branding I don't knowexactly what they use it for and
(36:18):
they forced this poor band tochange its name.
And it didn't reflect very wellon easy group that they would
do something like this.
But had Easy Life gone to atrademark attorney at the
beginning, just like anybusiness, and said you know,
we're thinking of calling ourband this.
What do you think A brieftrademark search might have
revealed a potential issue.
That's a slightly side onebecause you're not looking.
You know Easy Group are not aband, but if a trademark
(36:44):
attorney like me is asked tocheck on the availability of a
band name for entertainmentservices CDs or downloads or
whatever you know you canquickly check that.
So, just like with any business, you know you should do your
groundwork first and youobviously want to pick a name
that resonates to your targetaudience, you know is super cool
, you know reflects who you areGenius Id example.
Fantastic example of awonderful band name.
So you've got to, you've got tohave, you've got to satisfy all
(37:08):
those requirements, but thesame time you can do that at the
same time as making your legallife easy by checking first.
So advice to anybody out therewho's thinking of naming a band
don't just pluck something outyet.
It might be worth just having aquick chat with your local
trademark attorney.
Speaker 4 (37:19):
Yes, and there's, there's so many bands, uh, over
the years who have had to takekind of, uh, drastic action.
So if you remember the beat umin the us, they had to call
themselves the english beat toto distinguish themselves from
(37:40):
who knows the american beat.
But, um, it's.
It's funny, isn't it?
Because I think from atrademark perspective you'd
probably say, well, is the wordenglish enough to distinguish,
but you never know, you neverknow what went on in the
background.
So a couple of cases, um, whichI also located.
(38:03):
One involves Buck's Fizz and,for the record, I'm not a Buck's
Fizz fan.
Speaker 5 (38:10):
No, I thought that would be right up your street.
Speaker 4 (38:12):
What Buck's Fizz?
Speaker 5 (38:14):
Yeah, it's a bit more laid back and guns raised.
Speaker 1 (38:16):
Chris.
Come on, make your mind up.
Speaker 5 (38:22):
Put that skirt back on lee exactly.
Speaker 4 (38:26):
So this, this is a trademark opposition, but at the
time there were there were twoversions of bucks fizz touring,
so it really ties in with thethe whole kind of you.
You know, what are puntersactually paying to see?
And it was the original BucksFizz versus Bucks Fizz.
(38:49):
And I think this case was itwas the fact that in the
original Bucks Fizz there wasonly one original member and the
UKIPO said well, it doesn'tmatter that there was only one
original member, they are stillthe original version and you're
just a kind of you know, johnnycome lately or fizzy come lately
(39:14):
.
Um, so it just, you know, itshows that it doesn't matter
what you think of a band interms of how good they are or
how bad they are.
You know, there's still anaudience for so many different
strands of music, particularlynow with these kind of best of
the 80s, 90s, whatever tours,where someone gets rolled on,
(39:39):
you know, to Powell for one songand then it's over to Nick
Kershaw or something.
So the other one is probably abetter known band, the Three
Degrees, and that's a UK IPOopposition decision and again,
(39:59):
it needs a proper read.
Again, it needs a proper read.
But it's basically someone whowas never in the original lineup
, was applying to register.
I think the Three Degreesfeaturing Valerie Holliday, and
someone who had been in aprevious version of Three
(40:24):
Degrees opposed it, saying itwas passing off and bad faith,
some of the kind of stuff thatcomes out of the submissions and
evidence.
You know it's like so-and-so.
She doesn't even have apassport, she's never left the
US, so she's never left the us,so she's never gonna tour in the
uk.
(40:44):
But it shows that you know youthink about modern romance bucks
, fizz, brokel, harem, threedegrees, the smiths.
You know there's a lot of um,heartache, uh, over something
that I think, if you adopted asort of business head towards
(41:07):
the outset would would probablynot not happen so I think we're
coming to time, guys, um can wedo what?
Speaker 1 (41:18):
an encore, no, sorry I think too many of you up
against the hard.
Stop me and you me, and youcould carry on, chris, but we'd
have to rebrand the podcastpresumably.
Um, I won't let that happen I'mgonna come after you.
That's my entitlement from fromtwo peas in a pod yeah, but we,
um, we always try and end upwith a sort of loosely connected
(41:40):
but probably tangentialquestion, and I've got one.
I'm gonna.
I'll ask it to neil first andthen I'll roll it around the
rest of you.
Um.
So, neil, yeah, I know you're abig music buff.
Your task, if you're up to it,is to from from the bands or or
kind of artists that you like.
Yeah, which is the most obscure, and the test of that is has
the others of us ever heard ofit?
(42:01):
But they need to actuallyrecord it and put stuff out,
yeah, so you can't come up withsome random that you heard in a
pub once.
So what's the most obscureartist on your playlist?
Speaker 2 (42:12):
um, how about?
The comet is coming, how aboutthe Comet is Coming.
Speaker 1 (42:19):
Never heard of them?
No, never heard of them.
I have heard of them.
No, you haven't.
Speaker 4 (42:23):
I have heard of them.
Speaker 1 (42:24):
And he likes them.
Speaker 2 (42:25):
Shabba Gahatjian's on saxophone.
Nell Gonçalo plays flutesinstead of the sax.
Speaker 5 (42:30):
Does it have a French lady rapping in English on it?
Is that why?
Speaker 2 (42:35):
They could add that element.
Speaker 1 (42:38):
It might be good.
I'm guessing that's areasonably decent enough name to
protect.
Is it?
That's got enoughdistinctiveness?
Speaker 4 (42:44):
Definitely, definitely.
Speaker 1 (42:47):
Let's try you then, Chris.
What's in your kind ofcatalogue?
Speaker 4 (42:50):
Oh God, I mean, my music taste is so We've got that
, don't worry, yeah't worry,yeah, yeah, yeah, you can insert
your own punchline there.
I, I would say some of the um,some of the 80s, uh, sort of new
romantic aberrations that Istill like um from that era,
(43:16):
just because of you know,nostalgia.
But there was an outfit calledum our daughter's wedding.
Anyone that ring any bells?
Oh good, check out lawn chairs.
I think it was their only hit,so it went.
Lawn chairs, lawn chairs areeverywhere in my mind.
So, yeah, that I think that'sand I do.
(43:39):
You know, I've got one of thosecompilations that it's on, so
it it comes around now and againhow about you, joey?
Speaker 1 (43:48):
what's your um well?
Speaker 5 (43:49):
I'm going to mention something that I know none of
you have ever heard of, and theonly reason I'm going to mention
this is because, um, applemusic does this amazing thing
where, at the end of the year,it sends you like an email.
I can't remember how I receivedthis, but it was like a set of
stats about how much you'dlisten to, which bands you'd
listen to the most, how manysongs you'd listen to, how many
songs you'd listen to.
It was really interesting, kindof like a Google presentation
(44:11):
or something.
But the band I listen to morethan any others is a band called
Clearways, which is sort ofambient music, and I just and
what happened was I was havingsuch a stressful time at work
that I was putting it on in theafternoons when I just needed to
get on with my work, becauseit's got no vocals in it and
(44:33):
it's just ambient music.
And it turns out I listened toit for hundreds and hundreds and
hundreds of hours.
Oh my goodness, I can't believe.
And the reason none of you haveever heard of it is because
it's basically my brother uh, mybrother's musician, so it's one
of his band names, so you canlisten to it.
I'd highly recommend it forthose stressful afternoons where
you just need some music tocalm you down but not to
distract you.
That's what it's designed forand it is available on apple
music and spotify and everythingelse.
So it's quite a difficultquestion that you asked there.
(44:55):
I I was sort of racking mybrains thinking through all the
different areas of music that Ilike, whether it's metal, grunge
, dance music, jazz I like allsorts of things.
Yeah, my music taste can't becategorised.
It's just literally anything,even country music.
I've got a playlist for countrymusic.
Speaker 2 (45:11):
I didn't have you down as a metal fan, gerry, I
must admit.
Oh yeah big time.
Speaker 5 (45:14):
That's how I cut my teeth on that in the early and
the mid-90s.
Speaker 1 (45:20):
Let me chuck one in then to close the podcast.
And I'm not worried that Chriswill have heard of it, because
I'm going 80s as well and Istill listen to them weekly.
They're one of my treadmillbands to listen to, but I'm
hoping you've not heard of themso 80s guitar band the.
Immaculate Falls.
No, wow, there you go.
Well, well worth a look up.
(45:42):
The Weatherall Brothers and twoothers whose names I can't
remember who were, yeah, I thinkmaybe three albums, moderate
Chances no one's ever heard ofthem, and I still listen to them
today.
Speaker 4 (45:54):
Nice one.
Speaker 1 (45:55):
I'm conscious we've got to wrap up, so thank you
both for coming on.
Neil, thank you for standing infor Gwilym.
I'm conscious it didn'tactually get many words in
edgeways, but Gerry and Chriswere just running out of time,
weren't they?
Speaker 5 (46:07):
It really wasn't like having Gwilym in the room.
Speaker 1 (46:12):
No no, he's.
All I need to say before weclose is if you listen to the
podcast and you found itinteresting and engaging, leave
us a little review somewhere onthe podcast podcasting platform
of your choice, and then otherpeople find us.
Thank you very much Outro Music.
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