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Court Rules on Rock Band Trade Mark Dispute

StratocasterThe peace and love of the 1960s gave way to bitter acrimony over 40 years later as two former frontmen of legendary rock band, Wishbone Ash, fought it out in court over the right to use the iconic name. The dispute culminated in a ruling that a trade mark registered by one of the band’s founding members was valid and that he had an exclusive right to use the unusual moniker in a musical context.

Vocalist and bass guitarist, Martin Turner, dreamed up the band’s name before it played its first gig in 1969 and had recruited fellow rocker, Andrew Powell, to the line-up. However, it was Mr Powell, who still plays to packed houses of die-hard fans, who walked away from the High Court proceedings bearing the spoils.

Mr Turner’s accusations of bad faith against his former band-mate were rejected and the Court’s ruling meant that he would have to re-christen his own band which tours under the name ‘Martin Turner’s Wishbone Ash’, a title which the Court found had the potential to confuse and infringed Mr Powell’s trade mark.

Wishbone Ash had its big break with its third album, ‘Argus’, in 1972 but, by 1994, Mr Powell was ‘the last man standing’ from the original line-up. Although he was then ‘still friendly’ with Mr Turner, their relationship had ‘cooled’ by 1998 and Mr Powell successfully applied to register ‘Wishbone Ash’ as a trade mark.

Mr Turner argued that he only found out about the registration in 2004. Accusing his old friend of acting in ‘bad faith’, he claimed that Mr Powell had known that he was not entitled to the exclusive right to the band’s name and accused him of dishonesty and ‘falling short of the standards of acceptable commercial behaviour’.

Exonerating Mr Powell, however, the Court found that, in 1998, he was the only one of the original band members who was keeping it going and was ‘the sole owner of the goodwill in the name Wishbone Ash’. Although he had not told his former band-mates about his trade mark application, he had been under no obligation to do so.

Noting that ‘there used to be one band with the name Wishbone Ash, and now there are two,’ the Court found that the name chosen by Mr Turner for his group created a ‘likelihood of confusion’ in the minds of the average music consumer. Mr Turner had ‘obtained a clear advantage by riding on the coat tails of the trade mark in order to benefit from its power of attraction’.

The Court suggested that Mr Turner might re-name his band ‘Martin Turner’s Band’ or ‘Martin Turner plays songs of Wishbone Ash’. However, Mr Turner, 65, said that he was ‘widely recognised as the creative force behind the original Wishbone Ash’ and that such a name change would make him ‘sound like a tribute act’.