Written by Peter Whitehead, The Band Register
At the High Court on Thursday (27/9/01), Mr Justice Neuberger urged the V2 band Liberty and the r'n'b/soul band who have been using the name Liberty (Kevin Sutherland and David Lyall) for over 10 years to follow the advice proposed in court by Peter Whitehead of the Band Register to use the new Musicians' Union arbitration service introduced on 1st October 2001 for the purpose of resolving conflicts between MU members.
In his summing up he made it clear that he would not grant an interim injunction to stop the V2 band using the name for two main reasons: (1) because the original Liberty made it clear in court that they were prepared to accept the MU arbitration procedure rather than press their claim for the injunction which would obstruct the success of the single already on release by V2; and (2) because rather more time had elapsed than was desirable since the case was first mooted. This was because the pre-existing band's previous lawyers turned out to be representing V2 already on other cases.
The Band Register supports the claim of Kevin and David's pre-existing band Liberty and abhors the taking of band names which are clearly known to be already in use. In this case the Band Register researched the matter thoroughly on behalf of V2 Records and advised that the name should not be used. In the course of doing so we discovered that Basement Jaxx are fans of the band and that Felix approached them to enlist Kevin as guest vocalist on their top 5 single 'Red Alert'.
What is mystifying about this case is that V2 must know that Kevin and David's band have established their right to use the name in the USA by 'common law trademark' and will have little difficulty in substantiating their right to use the name in the several European countries who observe the principle of proven first usage. So, given that public opinion would appear to be getting behind Kevin and David's band, why are V2 taking their current stance?
As Mr Justice Neuberger oberved "I am mindful that there is a wide disparity between the resources behind the two parties in this case." On the one hand you have the might of billionaire Sir Richard Branson and on the other you have two musicians whose collective net asset value may well be less than the legal costs they have already incurred.
The Band Register believes it is time the UK music industry stood unanimously behind the principle that a well-established band should not have to stand by and allow a newly-formed band to take their name because they have superior funding.
This is truly a case of David and Goliath. But we believe that any right-minded person would look at the facts of the case and agree that the V2 band should not have the right to use the name.
We are glad that Mr Justice Neuberger so forcefully urged both bands to accept the MU's invitation to arbitrate - and maybe just a little sorry that the injunction wasn't granted, though in truth that would have set in motion procedures which could have led to hundreds of thousands of pounds being spent on legal costs - and the the UK music industry would be perceived as being unable to monitor and resolve its own name disputes.
We urge everyone to contemplate the implications of this case for all existing bands and musicians. Should we stand by and allow this situation to happen again and again? Or should we ask the BPI and AIM to ensure that ALL their members observe the basic principle of decency that you do not take something that is already in use just because you may have the financial clout to do so?
Almost 90% of Band Register traffic and usage comes from North America where we have very few name disputes indeed. The biggest problem territory by far is the UK which accounts for over 50% of the name disputes we encounter.
Thankfully the vast majority of record companies are very diligent and respectful in their research to avoid name infringement. We have built up an environment of trust and they know that we will help them with the use of a name wherever possible, even in some cases negotiating the right to use the name for them.
If you would like to express your support for the observance of respect for existing band name usage, please e-mail the Band Register at [email protected]
If you would like to help Kevin and David financially, they would appreciate offers of help to set up a fund to support them - and any suggestions as to what the name of the fund should be. 'Taking a Liberty' may perhaps be too corny? As things stand they are in danger of facing bankruptcy - so all contributions will, we are sure, be gratefully received once there is a trustee in place to supervise the fund's administration.
Peter Whitehead, The Band Register
www.bandreg.com