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THE NAME GAME The continued popularity of musical acts from the early years of rock-n-roll has resulted in numerous disputes over rights to these groups’ trade names. Among the bitterest battles have been those over rights to the names of the vocal groups “The Platters” and “The Drifters.” In fact, litigation over “The Platters” name dates back more than 30 years, with an assortment of inconsistent court rulings. In the latest case, the heirs of Tony Williams, the lead singer on most of the group’s hits; Larry Marshak, the manager of “The Tony Williams Platters;” and “The Five Platters Inc.” sued Herb Reed, the only original member of the group still performing. The action under Section 43(a) of the Lanham Act sought declaratory and injunctive relief for infringement of the plaintiffs’ unregistered trade name and service mark in “The Platters,” and alleged false designation of origin and unfair competition. The Williams’ heirs predicated their rights to “The Tony Williams Platters” on alleged continuous use of the name since 1962, as well as on an agreement with Marshak, who claimed rights from an agreement with FPI. They didn’t seek to prevent Reed from continuing to perform as “Herb Reed and the Platters,” but Reed, who claimed to have founded the group and created its name in 1953, argued that he had the exclusive right to use and license “The Platters” name or any variation. All the original members of the group except Reed had sold their stock in FPI to group manager Buck Ram in the 1960s. Reed resigned in 1969. The original members of the group continued to perform under some derivation of “The Platters” name, yielding the series of lawsuits. In the Williams’ heirs/Reed dispute, the U.S. District Court for the Eastern District of New York said that Reed’s entry into a 1987 settlement of a case filed against him by FPI in Florida barred Reed from asserting rights in the Platters name. Marshak v. Reed, 96-2292 (Feb. 1). The court added: “In this case, where competing groups of ‘Platters’ have appeared for many years, there can be no claim of injury to the public interest by allowing FPI to continue what it has been doing since 1969 in presenting groups as ‘The Platters’ that do not include any members of the original Platters.” But the court said that Reed could continue to perform with his Platters group. In the latest Drifters case, the U.S. Court of Appeals for the 3rd Circuit canceled the federal trademark registration in “The Drifters” name that manager Larry Marshak obtained in 1978 and permanently enjoined him from using the name in commerce. Marshak v. Treadwell, 99-5614 (Feb. 9). Larry Marshak had sued Faye Treadwell, the widow of the group’s early manager, George Treadwell, after release of her book, “Save the Last Dance for Me,” in which she claimed to be the sole owner of the “Drifters” mark. A jury found that Marshak or his assignors had perpetrated a fraud on the U.S. Patent and Trademark Office when he registered the group’s name. The district judge then ruled that the continuous stream of record royalty revenues collected by Faye Treadwell since the 1960s was sufficient to defeat Marshak’s claim of abandonment of the group name. Affirming, the appeals court noted, “Marshak contends that the jury’s finding of fraud was based on an erroneous jury instruction, which stated that fraud on the PTO could be shown by proof that the applicants ‘should have known’ about Treadwell’s superior right to ‘The Drifters’ name. Although we agree with Marshak that this instruction was erroneous, we are convinced that the error was harmless.” GUSTO ARTISTS’ JUDGMENT A Nashville federal court has issued a final judgment granting Hank Ballard, Gene Pitney, “The Shirelles” and B.J. Thomas $2.9 million, including attorney fees, in their long-running royalties suit against Gusto Records. According to plaintiffs’ counsel Sam Lipshie of Nashville, Tenn.’s Boult Cummings Conners & Berry, the amount will exceed $3 million when post-judgment interest is counted. But the court ruled that the plaintiffs’ New York counsel must be paid at the same hourly fee rate as their Nashville counsel. Thomas v. Lytle, 3:95-0347 (March 12) “Fighting for More Music Royalties,” April 27 in Los Angeles covers domestic and foreign royalty statements, Internet royalties guidelines, expert witnesses and litigation. For information, contact (561) 995-4818 or legalstrategiesinstitute.com.

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