In a carefully considered judgment the judge reviewed the authorities on passing off and found that the London funk group of some 15 years standing had built a modest but significant reputation which the group had never abandoned and in which they had maintained sufficient residual value. In these circumstances the original group is entitled to restrain the use of its name (and goodwill) by the later group. The judge accepted that the original group had suffered damage and that the presence of two groups in the market place presented a likelihood of inevitable confusion. There was also the likelihood that the original group would suffer damage as a result of being confused with the pop group.
The court ordered the V2 group to change its name within 6 weeks - to one not featuring the word Liberty alone. The exact terms of the final injunction are under discussion. The court also ordered an enquiry into damages.
The costs of the Claimants will be paid by the Defendants, but were reduced to 70% in the light of the fact that the Claimants did not pursue certain allegations at trial. The Defendants� own costs were approximately �140,000. After allowance for a success fee on the no win/ no fee agreement, the costs of the Claimants payable by V2 and its pop group are estimated at in excess of �175,000, subject to assessment by the court.
The Defendants indicated that they would consider an appeal.
The music industry depends on the ability of small unsigned groups to build on core following and to create and sustain their reputations. The ultimate test of reputation is not the sale of records alone (which is the business of record companies and distributors) but also recognition in the form of critical acclaim from fans, A&R executives, journalists, small labels and distributors and, notably, other artists, which the relevant group sustains by continuing efforts to succeed through their music.
The case should reduce further the number of disputes arising over names, which the existence of name registration services has already gone a long way to eliminating.
The judgment coincides with the original Liberty�s track �Some Kinda Love� getting a hit tip in a recent edition of the Tipsheet, following inclusion on the last A&R Network unsigned artists compilation. We wish the original Liberty the success they have long deserved.
Jens Hills & Co.
23rd January 2002