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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 8:51 am 
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Posts: 32
Jimski wrote:From KRis

"Evan Cohen, the attorney for Turner, conceded that there was confusion, but argued that the fanbase was so small that it didn't matter....Other points such as priority were argued on both sides and questioned by the judges.


The band had a top 30 UK album last year ok the fan base maybe smaller than it was but NT's side sound desperate
thanks for the update Jim


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 8:59 am 
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You would hope that they see through the blatant contradiction of stating the fanbase is so small it doesn't matter and yet being so desperate to trade under the band name to capitalise on that "small" fanbase. You would also hope that band's current raised profile, healthy recording output and corresponding chart success would also count for something. Fingers crossed.


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 12:27 pm 
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There is an underlying confession of guilt by action here.
As stated above, if the fanbase is basically non existent, why is Clepto records so horny to
claim the Hawkwind name?
Why would a record company finance lawyers, trials/court hearings for something so irrelevant?
Hypocritical contradiction to the nth degree.
Hopefully sane thinking and a lack of collusion steer the boards decision in the right direction.
"Find The Right Way" TTAB.

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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 2:18 pm 
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indeed - thanks for the updates folks and agree totally with the above comments - a bit of 'speaking with forked tongue' was predictable i guess - seems Dave and co's legal team are on the ball - so fingers crossed and here's hoping that justice will be done and the band/crew/and everyone involved can move on - continued best wishes


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 3:10 pm 
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I've said it before - the size of the audience is not the point, it's the intention to mislead anyone.

I find that attitude of "Oh, it's only a few Hawkwind fans. Who cares if we rip them off?" utterly deplorable.

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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 6:27 pm 
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There are still thousands who follow the mighty Hawkwind, virtually none would bother to cross the road to see NTs pale imitation. No confusion in their minds which side has the right to the name. The only people who may be confused are people who are completely unfamiliar with the band or their heritage. Fingers crossed the legal bods will understand that.

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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 6:49 pm 
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indeed and agree - the 'intensity' of the Hawkwind audience pre-gig is palpable - worth the entrance price alone! - my blood pressure hit's dangerous level's! - then the spaceship take's off - great vibes - great family!


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 8:41 pm 
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pete wrote:I assume if Dave does win then a court could then be asked to issue a cease order to stop him from stealing the bands name. Would it be a blanket ban or covering the whole USA or would it need to be repeated state by state?

...end quote...


yet another edit:

I suspect now that I initially misinterpreted the meaning in your question, Pete ~ while federal statute is binding in all states,
anyone attempting deception under false identity with intent to defraud the public for the purpose of monetary gain could be arrested on fraud charges, a serious crime in all states ~ a warrant is easily obtainable with papers in order.
This would only be the beginning of the imposters nightmare as, once booked and processed on criminal charges they would then face lawsuit on trademark violation.


The "commerce clause" of the Constitution (which concerns interstate commerce) grants Congress broad power to regulate matters affecting trademarks used in interstate commerce.
(federal authority classified as diversity jurisdiction).


Last edited by vikmarlo on Wed Apr 26, 2017 5:22 am, edited 1 time in total.

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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Tue Apr 25, 2017 10:16 pm 
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Here is hoping for the best


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Wed Apr 26, 2017 7:54 am 
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Whilst we who post here take it for granted that the 'average' fan would know the difference, we are a special interest group (pretty much by definition because we're on the band's forum). The crux of the argument is many wouldn't.

When I was in my teens/20s practically every friend I knew who was into rock had seen the band at least once, but many of these didn't know the name of key members then, less so now. I know that I go to see bands and have no or little idea of the names of members. One friend of mine is an ardent fan - attends all the London gigs, Hawkfests, HawkEasters, etc. - and still calls the man Dave BROOK!

Given the rare excursions by the band to the US it's entirely possible that even using the mark as applied for (with all words in equal fonts) casual fans would have no idea that what they are seeing is no the official band but a counterfeit. This is entirely plausible and highly likely, isn't it?

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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Wed Apr 26, 2017 9:21 am 
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your friend isn't welsh by any chance Jimsk?! - your absolutely right in what you say though - i remember back in the 70's someone i knew was into 'that bloke lynyrd skynyrd'!


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Wed Apr 26, 2017 9:36 am 
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Leonard Skinhead he recorded ska versions of Freebird


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Wed Apr 26, 2017 9:58 am 
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Jimski wrote:

Given the rare excursions by the band to the US it's entirely possible that even using the mark as applied for (with all words in equal fonts) casual fans would have no idea that what they are seeing is no the official band but a counterfeit. This is entirely plausible and highly likely, isn't it?

...end...


the likelihood is higher than high, IMHO, as I interpret any name preceeding a brand to indicate definitive authenticity !

examples ...

Alexis Korner's Blues Incorporated
Manfred Mann's Earth Band


which goes to demonstrate, all the more, just how underhanded the application really is



Last edited by vikmarlo on Wed Apr 26, 2017 4:44 pm, edited 2 times in total.

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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Wed Apr 26, 2017 10:32 am 
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Priority is I hope crystal clear and to me the crucial issue is to provide Dave Brock with a vehicle to bring his and Hawkwinds legacy to the US (and wider world) without having the quality associated with the mark degraded by commercial organisations wishing to capitalise on his IP. Why?

48 years of creativity that like Bowie has not been influenced by commercial imperatives.

A potential example of best practice in how to sustain an artistic entity within a commercial world yet outside of commercial influence.

Proven ability to create an extended family of fans and build on that fan base with younger members by ensuring new contributions are relevant whilst building on a back catalogue that like most of the best artistic works does not age.

48 years of altruistic approach to his music with extensive re-investment and sustained charity work at the expense of personal financial gain.

48 years of supporting emerging artists outside of the commercial arena through dedicated and free festivals and multi-day events.

I hope the legal bodies will recognise the personal contribution of Dave Brock to the global music community. There are many superb acts emerging, but ethical artists like Dave Brock are urgently needed to provide examples of best practice to emerging artists who will have to survive in a world where commerce is displacing artistic quality. I believe the legal structure has a duty to protect artists like Dave Brock for not only their own well-being but to protect their legacy that is so critical to the future.


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 Post subject: Re: TTAB sets HAWKWIND Hearing for April 24 at Silicon Valle
PostPosted: Thu Apr 27, 2017 11:12 am 
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Just read this on the TTAB blog page. Feedback on proceedings....

Friend of the TTABlog Raphael Gutierrez attended the oral hearing and provides the following observations and comments:

Attendance: About 40 people. The room could have accommodated about 100. Most appeared to be law students with their professors.

Panel:
- Deputy Chief Judge Susan Richey
- Judge Lorelei Ritchie
- Judge Francine Gorowitz

Neither party was present.

Counsel for the Parties:
- For Opposer Dave Brock: first year associate Jodi Benassi of McDermott Will Emery. Another attorney was at the table, but did not argue.
- For Applicant Nik Turner: Evan Cohen of Manifesto Records

The Board stated that each side would get 30 minutes to present its case. When asked if Opposer would like to reserve time for rebuttal, Opposer indicated it would like to reserve 20 minutes for rebuttal. Judge Richey asked if Opposer was sure and Opposer replied that it was. After 10 minutes of argument, Judge Richey offered Opposer 10 more minutes for argument, leaving 10 for rebuttal. Opposer accepted the offer.

The Judges did not let either party get far into their arguments before starting in with questions.

Opposer opened with the factual history, but was reminded by the judges that they were familiar with it. The judges asked Opposer to move on to the legal arguments. Opposer argued that he is the proper owner of the HAWKWIND trademark because he was a founder of the band and the most consistent member since the beginning. Applicant, on the other hand, started as a roadie before joining the band. He was eventually fired after about 8 years. Opposer argued that 9th Circuit case law [Robi v. Reed] makes clear that the name of a band does not move with a member who has been kicked out. Judge Gorowitz asked whether Opposer knew that 9th Circuit law was not binding on the Board and whether Opposer had any Federal Circuit precedent; Opposer responded yes and no, respectively. Opposer admitted infrequent touring in the US using the HAWKWIND name, citing the difficulties of touring and complications due to “medical issues” arising from stress caused by Applicant’s use of HAWKWIND. Opposer also claimed that consistent record sales (a rough average of 1,000/year) showed no abandonment of the mark in the past 40 years. The Board’s toughest questions related to Opposer’s false association claim and the fame of the party asserting the claim. The Board was dubious of Opposer’s claim that HAWKWIND was famous among all concert-goers. Judge Gorowitz pointed out that she had never heard of the band.

Applicant argued that HAWKWIND was not and is not a famous band, even amongst the narrower subset of enthusiasts of the “prog rock” genre. Applicant made the point that there has been a revolving door of artists, but did not emphasize that as a result there is no singular source for HAWKWIND music. Applicant argued that Opposer’s use of the HAWKWIND mark in the United States for musical recordings (1,000 albums sold per year) was de minimis and that Opposer had abandoned the mark for live musical performances, not having performed in the US for over 10 years. This led to questions from the Board about how much use is enough to constitute use of the mark. Judge Richey asked if Applicant was familiar with the Adidas v. Christian Faith Fellowship case. He was not, so she did not press with further questions. [One might have countered that Adidas related to use sufficient to support a trademark registration - not use sufficient to establish nationwide common law rights.] Upon further questioning Opposer did go on to suggest that something like record sales of 10,000/year would probably be sufficient use to support a trademark claim. Applicant admitted there was confusion, but said it was not dispositive because there were lots of different versions of HAWKWIND the band. However, much of the confusion related to people emailing Opposer or posting on blogs with questions like “Which version of HAWKWIND is this?” Applicant might have argued that these were mere inquiries, not evidence of actual confusion.

The Board asked tough questions of both parties, but did not indicate which way they were leaning.

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