Two IPs In A Pod

What's in a (band) name?

CIPA Season 12 Episode 3

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Trade marking isn't just a legal formality; it's a strategic move that can help make or break a band's artistic journey. Joining Lee Davies and Gwilym's stand-in, Neil Lampert, this week are trade mark attorneys Chris McLeod and Jerry Bridge-Butler, of CITMA, who bring a blend of legal expertise and rock 'n roll enthusiasm to our discussion. From Frank Zappa's Mothers of Invention to the oft-debated legacy of The Smiths, our guests provide insight into the historical missteps and modern approaches to band names and trade marks.

Speaker 1:

Neil, hello, Welcome back as co-host of the podcast. I've not had you on for a little while, mate. Hello, mate, Good to see you. Yeah, I've seen you all week, of course, because we've just both got back from a rather magnificent CIPA Congress our most attended yet and probably one of our most compelling themes. Having spent the whole day looking at the UPC, which was rather insightful, wasn't it it was great we had UPC judges.

Speaker 2:

We had visitors from around the world. Rather insightful, wasn't it? It was great we had UPC judges. We had visitors from around the world. We did as far as Australia, no less.

Speaker 1:

Yeah, australia, the States WIPO were there, which was rather cool. So, yeah, it all went brilliantly, thanks to the organising committee and, obviously, the hard work of the super staff. Have you been up to anything since I saw you on the plane yesterday?

Speaker 2:

Sleeping mainly.

Speaker 1:

It's much the same, mate, much the same. It does take it out of you, doesn't it? It's amazing how much a couple of days away, conference delivering does take it out of you. It's great to have you on the podcast today because you're a great music buff, aren't you?

Speaker 2:

Yeah, I'm looking forward to this one.

Speaker 1:

Yeah, I thought you might be.

Speaker 2:

Go on, who's your fave? Remind me again. Well, we're talking about trademarks and band names, aren't we? My great hero is frank zapper, and there's a bit of a band name related to him because his band was the mothers of invention. But he had to extend the name because he originally called the band the mothers, but that was deemed a bit too risque back in the 60s given the connotations of that word. So he changed it to the mothers of of Invention for the, I think the record company forced him to do that.

Speaker 1:

I'm a big fan of the Smiths, or was a big fan of the Smiths. I met Morrissey, of course. So I met all of them, but Morrissey is the one that stands in my mind because he told our band that we should we should give up call it a day because we weren't good enough. So that's my abiding memory, memory of when we appeared at the same venue back in 1981 or 82, or whenever it was Portsmouth Polytechnic Unbelievable but true.

Speaker 1:

Unbelievable but true. I might even give away our band name when we get into the conversation with our guests, because it's too long gone now and obviously we never made anything of it, but I'd still be interested to know whether we could have done anything to protect it, and maybe I still will.

Speaker 2:

Lee Davis and Gwilym Roberts are the two IPs in a pod and you are listening to a podcast on intellectual property brought to you by the Chartered Institute of Patent Attorneys.

Speaker 1:

So let's bring our guests on first. Let's go to Chris first. Chris, introduce yourself please, if you wouldn't mind.

Speaker 4:

Yes, good evening or good morning. The interweb, chris McLeod. I am a partner at Elkington and Fife. I run the trademarks team. I'm also responsible for the hilarious trademark of the week post on LinkedIn and I advise you strongly to look out for that every Friday. Today's is sort of borderline in terms of bad taste, but I've seen a lot worse. Okay.

Speaker 1:

I'm a bit aged right after this recording.

Speaker 4:

So that's me, and a big music fan have been for decades and decades, although I've never heard of Lee's band and I've never met morrissey that's to your advantage, and I'm always a big fan of morrissey.

Speaker 1:

Uh, jerry, welcome to the podcast. Welcome back to the podcast.

Speaker 5:

I think we should say, um, remind us who you are, sir yeah, before I start, let me just pick up this massive name, drop off the floor and give it back to you. Yes, so I'm Gerry Bridge-Butler. I'm a partner at Baron Warren Redfern. I lead the trademark team here. Like Chris, I'm dual qualified, so patent attorney and trademark attorney. I'm also a massive music fan, just like everybody seems to be. I think it's a generational thing. I'm always rather disappointed. My children don't seem to like music as much as I do.

Speaker 5:

But it's been really interesting looking into this question of band names, and a lot of the band names that come up are all quite old and very well established names that everybody knows. But you're going back quite a long time with a lot of this stuff. But it just seems to be that there was something a lot more rock and roll in the past. Bands split up because they were way more rock and roll. There was something a lot more rock and roll in the past. Bands split up because they were way more rock and roll. There were lots of arguments and shouting and of course they didn't care about registering trademarks and stuff like that. Oh, that's terribly not rock and roll at all, is it? So maybe these days, with manufactured bands, that doesn't happen at all. But if you're talking about, you know, the Smiths, pink Floyd, beach Boys, deep Purple, all those sorts of things, you know they're way more rock and roll and I think it probably reflects well on them in that respect that they end up falling out Brilliant.

Speaker 1:

Yeah, yeah, yeah. No, I'm sure you're right. I think music existed after about 1992, didn't it? Really, that's the general consensus. It does with the conversations I have with my children, although as they get older, I find they seem to like what you like, and I don't know if that's just because they've had it played to them so much that it's earwormed into their brains, I don't know.

Speaker 1:

Anyway, we're here actually because of a conversation I have with Chris and I have with Gerry on LinkedIn, immediately in the aftermath of Morrissey having one of his all-too-regular rants, this time again, about Johnny Marr saying how Marr had gone away and nicked the Smiths' name by trademarking it and he was really angry about it. This goes back just to kind of a couple of months ago. This year transpires that, in fact, marr had registered back in 2018, and Morrissey had only really just woken up and found out and he had done it protectively because the name was starting to be, um, trademarked for other uses, uh, particularly in digital gaming, and it actually involved morrissey solicitors in that, and the joint ownership aspect was just waiting for morrissey to sign a document. So, um, as he tends to do when he goes off on one um made made a little bit of a um fool of himself, but then he do. When he goes off on one made a little bit of a fool of himself, but then he did.

Speaker 1:

When he said that our band couldn't play either, because clearly we could, it might have been fair to say that I couldn't sing. That probably was a fair statement. So where should we start off? I mean, I'm conscious that quite a lot of people listening to this will not be Trey Buck attorneys or like Jerry, or maybe not be attorneys might be listening to this either because they're just followers of the podcast for its ip angle, or because it's got the words morrissey and mar in the little teaser that were put out, which might attract a uh an audience. So perhaps, as I'll start with you, chris, if that's okay, just perhaps a little bit of general gen on trademarks generally, if that's okay, yeah. And then we're working to why they might be important for bands and why bands historically didn't protect them.

Speaker 4:

Yeah. So I guess the premise is that having a registered UK trademark gives you a monopoly right, and that monopoly right is pretty extensive, or at least it can be, so it protects the identical mark, but also similar marks, and then identical products and services, and also similar goods and services, and possibly goods and services which aren't similar, if you can show sufficient reputation. So it's a very cheap and potentially powerful tool and then, in tandem with that, you can build up use-based rights which could be enforced under common law at passing off. So, for example, you know lee's band, I don't know what the name is.

Speaker 1:

You're gonna, you're gonna tease it was. It was genius id genius id.

Speaker 4:

I mean that's that's inherently very pretentious, extraordinarily pretentious it's inherently distinctive, though, but so, from the, from the day when you started, uh, the band, you would be generating goodwill, which which isn't an assessment of the quality of the output, but it just means that you start to build up protection which you could enforce against. You know an upstart band called Id Genius or something like that. So you've got these two rights that are often pleaded together, but you don't. You don't need to be using your mark until it gets to five years on the register. At that point, someone could come in and attack it. I don't know if Gerry wants to add a gloss to that.

Speaker 5:

Well, I think I'd just maybe take an even bigger step back and just say what trademarks actually are. They are signs that are designators of origin and they're supposed to avoid, prevent confusion. So if you see a trademark and you recognize it, you know where that product comes from, um, and if you see a different trademark on a different product, you know that comes from somewhere else. So that's where the word branding comes from branding cattle. So this is my cattle, this is where it comes from. So when you're talking band names, if you see a band name on an album, you know who made that music because it's that band. So when it comes to sort of avoiding confusion here, it's all about when bands break apart and which is, which is the band? Is it this one over here or is it this breakaway person over there? And if you've got two people using the same brand name, what actually happens is confusion. And that's what trademark law is all about. It's about preventing confusion. So that's what a trademark registration is for you obtain it and it gives you the power to prevent that confusion happening. So if you have the band name trademarked already and it's all nicely controlled, then if something like this were to happen and someone were to go off and start using it themselves a former band member, for instance you can take action and you can stop it, and that's how trademark law works.

Speaker 5:

So with the Smiths example, it wasn't a registered trademark. For all the years that they were famous they didn't bother to register it as a trademark. Because if you're selling bread or violins or something, then you've got a business that makes something and sells it, and so getting a trademark registration is something that most people do do and it's at the forefront of most businesses' minds. But it's very difficult to transpose that thinking across to an artistic endeavour like a band. Band members don't think about registering trademarks because it's all.

Speaker 5:

As I said before, it's all rock and roll, isn't it? But then the problem comes when you have a falling out. It's like, well, now we've fallen out, now who owns this? And it always well, I was going to say it surprises me perhaps it doesn't how emotional, um, a lot of my clients get when it comes to trademark disputes. It's a very sort of simple, sort of legal thing we're talking about. But if you talk about, you know, artistic people in a band, one member of a band sees another member of a band registering the trademark. That is absolutely infuriates them because they think they're being taken for a ride. And that's what happened here, as you pointed out. There might not actually have been an issue but, because there was a lack of communication, you had one person registering it saying I own this, I control this, I'm the one who's controlling this marketplace. And there's already confusion. Poor old Morrissey's out in the cold saying oh no, hang on a minute, why have I been left out of this and that's where you get a dispute arising.

Speaker 1:

Can I just add a sort of further element or question in there? Would it be possible? So go, go back. Let's just stick with Smiths for the moment, because it's the example we started with, and then we'll go elsewhere. Yeah, they did. They didn't register anything during their actual kind of productive years. Could the music company have registered it? Could? Could someone else of who was involved in that kind of output, if you like, have registered it and therefore prevented them from ever using it other than under the auspices of um, that record company or whatever it might be?

Speaker 5:

well, the answer to that is is yes. I think the very modern way of producing uh music is to do it in that manner. It's a lot more controlled by a record company or a producer like Simon Cowell or somebody like that, who will manufacture a band and then all the legals will be tied up very nicely and the record company will control it. So you know, something like One Direction, for instance. You know that is almost certainly not owned by the band but owned by the production, and there's going to be similar examples of that.

Speaker 5:

I mean, I came across one example where a band had sorted itself out properly and was able to control the situation, and that was the Stone Temple Pilots, a grunge band from the US. So this was a case that was under US law. But the former singer, scott Weiland, or Weiland, or however you pronounce it he basically left the band and they went off and started singing, you know, and pretending to be Stone Temple Pilots. But they were able to sort it out very rapidly because they had a proper agreement in place, they had trademark registrations and they put an end to it sharpish, and that's what the ideal that you'd be looking for. So I guess, if you considered producing music a bit like producing a book.

Speaker 5:

If you look at publishing, companies know they register trademarks, they get everything sorted out, it's all legally sorted out. Um, so the modern way of doing it would be probably very much along those sorts of lines. But I think perhaps a slightly, you know, a more interesting question. Maybe chris can answer this. But if you are a band now and you're not necessarily at a high level, but you're forming the band and you're thinking about, well, how best should we, you know, what would be the best advice to give you know a group of youngsters in terms of just making sure that they sort it out so that the future doesn't hold any disputes?

Speaker 1:

That's a great question, chris. So the now 15, 16-year-old me has come to you saying we've got this band. It's called Genius Id. What do we do?

Speaker 4:

Well, I would follow the same line that I take with more, you know, wealthier clients. I'm not suggesting you're not wealthy, you've got, obviously got a piano which I don't have. Is it a piano or is it a bureau? It's a piano, good, good, I don't play. Ah, good, um, yeah, I would say.

Speaker 4:

I would say, do it because it's relatively cheap, and do it in the individual names of each of the group, and then if someone leaves, then you have some agreement which sort of says that if someone leaves, then they give up their share of the trademark. I think Coldplay are a are really I wasn't going to say interesting band and actually I'm not a cold play basher, I don't mind them, um, but they, I'm pretty sure their trademark is owned equally by the four members and their publishing deal is unusual in that it's split equally four ways. So you know, and I think they're probably a good example, they've definitely registered their trademark. But certainly I would say get in there early, register, and then really the issue goes away. If you don't make it, you just don't renew the mark. If you do make it, then you're protected.

Speaker 1:

So but can I? Can I come back on something? So in your um introductory comments you said about uh uk registered mark, uh music's global, isn't it so? Um, so how fast? How far should the extent of your protection go? Should you be thinking about europe? Should you be thinking about the world?

Speaker 4:

yeah, but that that's that's when you do start to run up costs, because, okay, getting euy protection is relatively cheap and maybe a wipo international registration could pick off the us etc. But it it just becomes expensive. So I think you know, perhaps when they get their first advance um, then you know they could look at extending protection outside the uk. But I don't know if you've been watching this I think it's called paid in full a bbc two, three parter about specifically the black music industry and how big record companies have systematically ripped them off for decades. It is, it's fascinating.

Speaker 4:

I mean there's a clip of tlc openly saying at the grammys that you know we've had x number one hits and we are broke. What is going on, um? So yeah, I think you know, register the mark and then if you get a deal, you know you can talk to the record company about licensing it to them. So some models now are own everything and license it and then if the deal goes south, then you retain your rights to some extent Obviously not all of them, but you keep your trademark.

Speaker 5:

I mean, a really good example of a slightly alternative way of dealing with that is to rebrand yourself, and there's a really famous example of somebody doing that, and that's Prince, who rebranded himself as Cymbal or the artist formerly known as Prince, so washing his dirty, washing in public very much, and that was obviously an example of him feeling like he didn't actually control the brand name Prince or the output of Prince, or it was a dispute with his record company about how much output he could put out. Um, so you know, it's a terrible situation to be in, but someone of his fame was able to almost get away with it. He was so famous he could get away with a re, one of the world's most famous rebrands a much better rebrand, I would say, than rebranding Twitter to X, which I think is one of the worst rebrands of all time. But it just shows that there was obviously a dispute that arose there because of who controlled it and an artist feeling like, well, hang on, I'm the artist here, I'm the one who's actually built the reputation in this brand name because I'm the one writing the music, but I don't control this name, I don't control how much output I can put out. I'm losing artistic control. So what am I going to do? I'm actually going to rebrand myself, which is a pretty astonishing thing to do, and I seem to recall him actually appearing on Top of the Pops when I was younger, with a cloth across his entire face, so you couldn't even see his face. He's saying you control my image, you control everything. This is terrible. I'm not even going to show my face. So you obviously don't want that to happen. But unless you're enormously famous, you can get away with actually making yourself more famous by rebranding. Yeah, you wouldn't want something like that.

Speaker 5:

I think I just pick up on a couple of points that Chris made about, you know, protecting the mark around the world. As Chris points out, if you're registering trade parts in lots of different jurisdictions, it gets hideously expensive. But one thing to just mention in contrast to patents, there is no deadline for extending your rights to other jurisdictions. You can build a portfolio of trademark registrations over a long period of time. So you can start off small with a UK application, just get the ball rolling and then, if you do grow, if you start selling music in America, then register the mark there. You know you can do a bit of clearance, searching first to see whether or not the mark is going to be available to you.

Speaker 5:

But there is also this other problem, which is an issue with trademark registrations generally, which is what do you register a band name for? When you register a trademark, you register it for selling particular goods or for providing particular services, and there isn't actually anywhere in the trademark classification system that says you know bands. It just doesn't exist. So you've got to register your trademark for entertainment services, which is protecting you for the live performances and actually being a band. But then if you want to register it for I mean, this is a slightly out of date thing but selling CDs and so on, that's in class nine.

Speaker 5:

If you want to sell clothing, that's in class 25. If you then want to start selling perfume and key rings and sunglasses, all of a sudden you're becoming almost like a diversified brand which I think somebody like Coldplay if you were to look at their registration probably covers an awful lot of stuff and it builds and builds and builds. And you can build jurisdictionally, you can build subject matter-wise. You can build up a huge empire, a sort of portfolio of trademark rights associated with your brand if you want to. But you don't have to do that straight away. You can just build it as you went along, depending on how famous you are I've now got odour pink floyd going around in my brain for some reason.

Speaker 1:

I don't know what that smells like. I've never been to a pink floyd.

Speaker 4:

Pink floyd gig, probably pretty bad patchouli oil, maybe Petulia oil, maybe Old blokes, yeah, sweat maybe.

Speaker 2:

Do individual band members think about trademarking their own names?

Speaker 4:

I mean it's, yeah, it's probably. I guess it might be worth it if you're you know, radiohead's not really a great example and, by the way, I don't like Radiohead there are things you do like, yeah, there's loads of stuff I do like I'm going to talk about a few of the arcane cases that I've dragged out, but so Radiohead had to have that side project. I can't remember what they're called. Smile yeah, thank you, and what's? What's the singer called? I can't remember his name. Tony Hawk yeah, he does solo stuff you don't write.

Speaker 4:

I told you I'm not a Radiohead fan. Yeah, I'll die in a ditch before I listen to them. Um, but yeah. So I think if you're, if you're trading on your own and then putting out cds, streaming, you know, merchandising, whatever, then probably it is worth doing.

Speaker 5:

I mean, a good example would be somebody like Slash from the Guns N' Roses.

Speaker 4:

I don't like Guns N' Roses, no I didn't think you would.

Speaker 5:

So you've got Guns N' Roses, obviously a very famous band name, very famous brand, if you like. They've had their own problems actually with arguing over the name because when the band split up, axl Rose took control of it and went off touring on his own, effectively, with other band members who none of them were in the original Guns N' Roses. I had the misfortune of seeing a concert of Axl Rose with all his other bandmates and it was dreadful. But it's just a good example of you've got somebody in a band who has his own brand, even when he was still in the band and because he has that sort of rather odd name.

Speaker 5:

You know Slash, and you could say the same thing about Bono or the Edge or something like that. So those are actually separate. You could call them sub-brands, I suppose. But they do really belong to those individual people and if they went off and recorded their own music and released their own records, then they would obviously need to protect that. So you can see how that can work and it doesn't really impinge upon the main brand name and its reputation. Who owns that?

Speaker 4:

yeah, um. So I flagged up some sort of rather well, not necessarily obscure, but some uk uh trademark um office disputes.

Speaker 4:

So the first one is involves the group modern romance, if anyone remembers them, yeah I have to say I do I do like modern romance, not not necessarily if you remember the song I, I, I, I moosey I didn't really enjoy that but on, I think, on their one and only album there's a few decent sort of funky tunes. One's got a French woman rapping on it, which is rapping in English, which is amusing to say the least. The ex-lead singer, a guy called Jeffrey Dean who had worked on Smash Hits and I'm sure we're all of that vintage that we remember Smash Hits. So they'd applied. He'd applied, with some objected, saying you know, he hasn't been in the band for ages, what's he doing? And, in a nutshell, the application to the opposition I think it was was successful under the law of passing off Because this guy hadn't been involved with the band for years and was just being opportunistic to to then try and do concerts under the under the band name. Um. So that's an interesting one, not least because we found you know one of my guilty pleasures which is modern romance.

Speaker 4:

I guess procol harum is more you know everyone's of my guilty pleasures, which is modern romance. I guess Procol Harum is more. You know everyone knows Procol Harum, white or shaded, pale, absolute classic. And if anyone disagrees I'll drop off the podcast now. But there's a trademark dispute between members of the band and basically one tried to invalidate the registration that the other owned and it was unsuccessful. So gary brooker was the applicant to invalidate and the keith reed was the owner. I haven't re-read the decision, but it's basically to do with you know who was still trading as Procol Harum. Was there any agreement? I'm pretty sure there was no written agreement, and that's the theme, isn't it? Where you get together it's like yeah, we are genius, id, we don't need no bleeding contract, let's just get out there and rock it.

Speaker 1:

We were a little bit more advanced than that. We had a joint bank account in all five of our names and I and I and I know because I still get the statement comes to me everywhere it goes to my mom and dad's house because that's where I was living at the time, obviously, um, and we are still the prince, the owners of the five pound each that we put in back in 1980 or whenever it was um, and that's what that's still in there so I wonder if there's still some residual goodwill floating around in relation to this band name, because that's another interesting point.

Speaker 5:

An example the Eiffel Duda band. Chris, you a fan of them? Not really. I am an urban spaceman. No, no, I didn't think you were. Well, I?

Speaker 4:

don't mind urban spacemen, but they're just a bit too kind of whimsical.

Speaker 5:

They're also, yeah, whimsical and comedic. I whimsical, they're also, yeah, whimsical and comedic. I think they did some stuff with monty python things. Yeah, what happened to them was that they disbanded years ago and a former promoter or manager person registered a mark which had their name in it in the mid-teens and they wanted to reform and discover that this registration was there and cause more problems, so they tried to invalidate it. What was interesting in interesting in that case was that they still had some residual rights, despite the fact they hadn't used it for a long time.

Speaker 5:

So one of the aspects of trademark law is that if you don't use a registered trademark for five years, it can be revoked for non-use. So there's this sort of principle in trademarks that if you don't use a mark for a long time, you sort of lose it, even if you're talking about common law rights. You might have used it in the 60s and 70s, but you know, once it's all dissipated who really owns anything. But in that case it was quite interesting because they could. They could basically say, yeah, we have, we do have residual rights in this, even though they go back a long way.

Speaker 5:

It's something that I seem to come across a lot in my practice because we represent people who have old car names, car brands that aren't being used to sell cars at the moment. But they might have not sold a Sunbeam car for 30 years, but there is still rights in that. And that does come up in bands because the band, even though they might not be bringing out new stuff, if they can demonstrate there's still streams, there's still downloads, people are still buying the albums. Then, effectively, there's still use. So all this stuff does go back quite a long time and if a band has a good reputation then it can be festive for some time, which is something that's quite particular to this particular subject we're talking about in Trademarks, because it doesn't really go across other disciplines in this area.

Speaker 1:

So let's go back to the Smiths example. So Morrissey registered. Johnny Marr registered. The Smiths example, so Morrissey registered. I don't know Morrissey. Johnny Marr registered to the Smiths in 2018. He's not toured as the Smiths, he's not produced any music as the Smiths. He's six years on, so could Morrissey just do him under lack of use? Or is the fact that the Smiths still exist in terms of their music enough?

Speaker 4:

I mean I'd hate to go on the record and say do it, morrissey. Um, he's not okay. No, he might be. He.

Speaker 5:

This, this might reach him you're an old pal of lee's, isn't he? So I'm sure he is I, I, I'd imagine that's.

Speaker 4:

That's pretty much nailed on, but so the the primary issue is is is whether the owner and that the owner of the smith's registration is the company of which johnny marley's wife, I guess the directors. So it's whether there's been any use by the owner or with the owner's consent in in the past five years. When someone applies to cancel um and I, I don't know who puts out the smith's back catalog, but it's probably not johnny marr. They were on rough trade, weren't they? But yeah, they were on rough trade, weren't they? Yeah, they were yeah. So I think it would be. I mean, there may be some agreement that you know, between the company that currently puts out the recorded output and Johnny Mar and Morrissey. I think the other two are dead, aren't they?

Speaker 1:

No, no, andy Rock died last year.

Speaker 4:

Sorry, Andy, if you're listening. Yeah, rumours of your demise are greatly exaggerated.

Speaker 1:

But Mike Joyce is still very much alive and still very much living on the royalties that he now gets a quarter share in. If you remember, he famously took yeah in my talk to um secure that.

Speaker 4:

But yeah, no, but still alive so, looking at officialsmithscouk, the last thing that was put out was a deluxe edition of the queen is dead 2017. Copyright warner music uk limited.

Speaker 5:

so it you know, obviously with kind of talking slightly in the dark, um, and you might say, big mouth strikes again, uh I think the important point to just reinforce is that you can only invalidate a trademark registration for non-use once it is more than five years since it was registered. So I don't think that would apply right now, but say, time passed and we reached that anniversary date. Then, lauracy, that was one of the things that he could do. He could apply to revoke it for non-use. But in terms, if he wanted to regain some control or some ownership, then he would have a cause of action by bringing what you'd call an entitlement action, I suppose, or a joint entitlement action. So he could apply at the UKIPO for the mark to either be invalidated and refiled or perhaps even partly assigned to him. I don't know whether the UKIPO could actually issue a ruling like that. I suppose it could.

Speaker 4:

Yeah, rectification yeah.

Speaker 5:

His argument would be that he has at least a joint right to that name, and I think he could probably put together a very good and convincing argument that that was the case. It would be somewhat complex and you'd need to have evidence, so that evidence would have to be compiled and it would be a fairly serious case. But I think he would have a pretty good argument that he has at least a joint proprietorship right to that so that he could end up as a joint proprietor on the register. And joint proprietorship as Chris was mentioning earlier, how it works is you don't own half each. You both own the whole thing and you both have the right to use it, but neither has the right to dispose of that registration without the consent of the other. So it means they could basically tour separately, which would be slightly weird, which is why you would need an overarching agreement that said, yeah, we do own it on a joint proprietorship basis, but we will only use it collectively together and if you leave you'll breach the contract or something like that. So there is definitely something he could do, and it kind of surprises me that, with all the publicity he generated, that nothing seems to have happened.

Speaker 5:

I don't know whether he's appointed anybody and he's actually going to do something about it. But there's also this, this other issue which floats around all major, famous brand names, which is what is the publicity going to be if you do something like this? You know a lot of big brands get into trouble by taking action against smaller parties and it really backfires. And does this band's legacy do they want their legacy to be that they're almost as well known for fighting over the name than their music? Probably not. You know, morris is probably sat there going I'm not going to do anything about this because we're not. We're not actually recording new music, we're not touring with me. It's better to just leave it live.

Speaker 5:

Everyone knows I was upset about it. I've had my say maybe just leave it there. It doesn't affect his royalties or anything like that. You know there's no question of that. So he's not being. You know, I don't think he's lost out to the extent that he perhaps would like to have said he has, but maybe that you know you could take some interesting advice here as to what would be the best course of action for morrissey. I mean, if it was me, I'll probably say just don't do anything, um, and if you want to revoke it in five years when he hasn't used it, then just quite do that on the quiet. You know something like that. But if you end up with some big dispute and john Marr decided to defend it and you ended up having some sort of hearing where they were arguing over who was who had the biggest right to this name, who was artistically the most creative, and that sort of thing, it's just be dreadful.

Speaker 1:

I should think you just you don't want to see all that, being a smith's geek and we will finish on the smiths because I know both of you got some other things that you would like to talk about and we've not got a huge amount of time now but being a big Smiths geek, 100%. Johnny Meyer created the band. He gathered Morrissey, Rourke, Joyce, together created the band that's all known in Smith folklore and Morrissey created the name. The name is Morrissey's Invention and that's hugely well known and I think why he was so annoyed by it because in his head the Smiths is him, the brand was his invention I mean it is a bit like.

Speaker 5:

I mean, if I can very, very briefly mention, there's another example going on at the moment, which is a similar thing, related to fun loving criminals, where there's a uk trademark registration that was uh, filed in 2021. That belongs to um the members of the band other than the most famous one, huey morgan and it came about when there was a sort of acrimonious, rather public split up of the band and the others went ahead and registered it. And you know there's a lot of sort of bad feeling going on and you know Huey Morgan's position is that he's the most famous one and that the others don't amount to much and it's all rather unsavoury. And you know it's not. You know you don't really want to see that sort of thing going on, but it's a very, very similar example. There's the Smiths one, where some band members have obtained this registration and the other band member didn't know anything about it and got very, very upset about it and feels very emotional, like well, you're taking me for a ride, you're taking something from.

Speaker 5:

Again he would have a very similar kind of case to Morrissey. It's like, well, he could probably apply to either have it cancelled or have it rectified, so he has joint proprietorship, or something like that because he would be able to put his own case together of his influence and association with that band name.

Speaker 5:

So any other interesting examples you found in your search. Either of you before we um, before we move too close. Well, I was at. One point I just wanted to make was, as with all trademarks, um, if you're going to choose one, you need to make sure that you're you're free to use it and that you are not going to run into anyone else's earlier rights. So if you're choosing a band name, always do a trademark check first, because otherwise you just end up having to rebrand if you like, change your name.

Speaker 5:

And there was one very famous example of a poor, unfortunate band called easy life, which I think we've all seen the news in the last couple of years. Who um were the subjects of an action brought against them by easy group, um, the company that runs easy jet, because they have some easy life registrations which are part of their branding I don't know exactly what they use it for and they forced this poor band to change its name. And it didn't reflect very well on easy group that they would do something like this. But had Easy Life gone to a trademark attorney at the beginning, just like any business, and said you know, we're thinking of calling our band this. What do you think A brief trademark search might have revealed a potential issue.

Speaker 5:

That's a slightly side one because you're not looking. You know Easy Group are not a band, but if a trademark attorney like me is asked to check on the availability of a band name for entertainment services CDs or downloads or whatever you know you can quickly check that. So, just like with any business, you know you should do your groundwork first and you obviously want to pick a name that resonates to your target audience, you know is super cool, you know reflects who you are Genius Id example. Fantastic example of a wonderful band name. So you've got to, you've got to have, you've got to satisfy all those requirements, but the same time you can do that at the same time as making your legal life easy by checking first. So advice to anybody out there who's thinking of naming a band don't just pluck something out yet. It might be worth just having a quick chat with your local trademark attorney.

Speaker 4:

Yes, and there's, there's so many bands, uh, over the years who have had to take kind of, uh, drastic action. So if you remember the beat um in the us, they had to call themselves the english beat to to distinguish themselves from who knows the american beat. But, um, it's. It's funny, isn't it? Because I think from a trademark perspective you'd probably say, well, is the word english enough to distinguish, but you never know, you never know what went on in the background. So a couple of cases, um, which I also located. One involves Buck's Fizz and, for the record, I'm not a Buck's Fizz fan.

Speaker 5:

No, I thought that would be right up your street.

Speaker 4:

What Buck's Fizz?

Speaker 5:

Yeah, it's a bit more laid back and guns raised.

Speaker 1:

Chris. Come on, make your mind up.

Speaker 5:

Put that skirt back on lee exactly.

Speaker 4:

So this, this is a trademark opposition, but at the time there were there were two versions of bucks fizz touring, so it really ties in with the the whole kind of you. You know, what are punters actually paying to see? And it was the original Bucks Fizz versus Bucks Fizz. And I think this case was it was the fact that in the original Bucks Fizz there was only one original member and the UKIPO said well, it doesn't matter that there was only one original member, they are still the original version and you're just a kind of you know, johnny come lately or fizzy come lately. Um, so it just, you know, it shows that it doesn't matter what you think of a band in terms of how good they are or how bad they are. You know, there's still an audience for so many different strands of music, particularly now with these kind of best of the 80s, 90s, whatever tours, where someone gets rolled on, you know, to Powell for one song and then it's over to Nick Kershaw or something. So the other one is probably a better known band, the Three Degrees, and that's a UK IPO opposition decision and again, it needs a proper read. Again, it needs a proper read. But it's basically someone who was never in the original lineup, was applying to register.

Speaker 4:

I think the Three Degrees featuring Valerie Holliday, and someone who had been in a previous version of Three Degrees opposed it, saying it was passing off and bad faith, some of the kind of stuff that comes out of the submissions and evidence. You know it's like so-and-so. She doesn't even have a passport, she's never left the US, so she's never left the us, so she's never gonna tour in the uk. But it shows that you know you think about modern romance bucks, fizz, brokel, harem, three degrees, the smiths. You know there's a lot of um, heartache, uh, over something that I think, if you adopted a sort of business head towards the outset would would probably not not happen so I think we're coming to time, guys, um can we do what?

Speaker 1:

an encore, no, sorry I think too many of you up against the hard. Stop me and you me, and you could carry on, chris, but we'd have to rebrand the podcast presumably. Um, I won't let that happen I'm gonna come after you.

Speaker 1:

That's my entitlement from from two peas in a pod yeah, but we, um, we always try and end up with a sort of loosely connected but probably tangential question, and I've got one. I'm gonna. I'll ask it to neil first and then I'll roll it around the rest of you. Um. So, neil, yeah, I know you're a big music buff. Your task, if you're up to it, is to from from the bands or or kind of artists that you like. Yeah, which is the most obscure, and the test of that is has the others of us ever heard of it? But they need to actually record it and put stuff out, yeah, so you can't come up with some random that you heard in a pub once. So what's the most obscure artist on your playlist?

Speaker 2:

um, how about? The comet is coming, how about the Comet is Coming.

Speaker 1:

Never heard of them? No, never heard of them. I have heard of them. No, you haven't.

Speaker 4:

I have heard of them.

Speaker 1:

And he likes them.

Speaker 2:

Shabba Gahatjian's on saxophone. Nell Gonçalo plays flutes instead of the sax.

Speaker 5:

Does it have a French lady rapping in English on it? Is that why?

Speaker 2:

They could add that element.

Speaker 1:

It might be good. I'm guessing that's a reasonably decent enough name to protect. Is it? That's got enough distinctiveness?

Speaker 4:

Definitely, definitely.

Speaker 1:

Let's try you then, Chris. What's in your kind of catalogue?

Speaker 4:

Oh God, I mean, my music taste is so We've got that, don't worry, yeah't worry, yeah, yeah, yeah, you can insert your own punchline there. I, I would say some of the um, some of the 80s, uh, sort of new romantic aberrations that I still like um from that era, just because of you know, nostalgia. But there was an outfit called um our daughter's wedding. Anyone that ring any bells? Oh good, check out lawn chairs. I think it was their only hit, so it went. Lawn chairs, lawn chairs are everywhere in my mind. So, yeah, that I think that's and I do. You know, I've got one of those compilations that it's on, so it it comes around now and again how about you, joey?

Speaker 1:

what's your um well?

Speaker 5:

I'm going to mention something that I know none of you have ever heard of, and the only reason I'm going to mention this is because, um, apple music does this amazing thing where, at the end of the year, it sends you like an email. I can't remember how I received this, but it was like a set of stats about how much you'd listen to, which bands you'd listen to the most, how many songs you'd listen to, how many songs you'd listen to. It was really interesting, kind of like a Google presentation or something. But the band I listen to more than any others is a band called Clearways, which is sort of ambient music, and I just and what happened was I was having such a stressful time at work that I was putting it on in the afternoons when I just needed to get on with my work, because it's got no vocals in it and it's just ambient music. And it turns out I listened to it for hundreds and hundreds and hundreds of hours.

Speaker 5:

Oh my goodness, I can't believe. And the reason none of you have ever heard of it is because it's basically my brother uh, my brother's musician, so it's one of his band names, so you can listen to it. I'd highly recommend it for those stressful afternoons where you just need some music to calm you down but not to distract you. That's what it's designed for and it is available on apple music and spotify and everything else. So it's quite a difficult question that you asked there. I I was sort of racking my brains thinking through all the different areas of music that I like, whether it's metal, grunge, dance music, jazz I like all sorts of things. Yeah, my music taste can't be categorised. It's just literally anything, even country music. I've got a playlist for country music.

Speaker 2:

I didn't have you down as a metal fan, gerry, I must admit. Oh yeah big time.

Speaker 5:

That's how I cut my teeth on that in the early and the mid-90s.

Speaker 1:

Let me chuck one in then to close the podcast. And I'm not worried that Chris will have heard of it, because I'm going 80s as well and I still listen to them weekly. They're one of my treadmill bands to listen to, but I'm hoping you've not heard of them so 80s guitar band the. Immaculate Falls. No, wow, there you go. Well, well worth a look up. The Weatherall Brothers and two others whose names I can't remember who were, yeah, I think maybe three albums, moderate Chances no one's ever heard of them, and I still listen to them today.

Speaker 4:

Nice one.

Speaker 1:

I'm conscious we've got to wrap up, so thank you both for coming on. Neil, thank you for standing in for Gwilym. I'm conscious it didn't actually get many words in edgeways, but Gerry and Chris were just running out of time, weren't they?

Speaker 5:

It really wasn't like having Gwilym in the room.

Speaker 1:

No no, he's. All I need to say before we close is if you listen to the podcast and you found it interesting and engaging, leave us a little review somewhere on the podcast podcasting platform of your choice, and then other people find us. Thank you very much Outro Music.