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Walker Morris’ Client Wins Major Music Trade Mark Dispute

Friday, October 25, 2013

Lawyers at Walker Morris have achieved a successful outcome in the Intellectual Property Enterprise Court for Andy Powell from the rock band, Wishbone Ash. The case is one of the most high profile music band disputes in recent years and has important consequences for trade mark rights in the music industry.

Wishbone Ash gained widespread popularity in the 1970s with its third album, Argus, which is widely as a classic of its genre. Through the involvement and guidance of Andy Powell, the last member of the original line up, the band which has a diehard following across Europe and the USA, is still actively performing.

The case concerned the activities of Martin Turner, a former member of the band, who had left twice to pursue other interests in 1987 and then again in 1995. However, more recently, he formed a band under the name 'Martin Turner's Wishbone Ash' in response to which Andy Powell brought trade mark infringement proceedings against him. Martin Turner, who is represented by Mishcon de Reya, denied infringement and sought to have the European wide trade mark registration in WISHBONE ASH which is owned by Andy Powell, to be declared invalid .

Disputes between music bands are certainly not new and Wishbone Ash is the latest of a spate of cases involving ex-members seeking to use the names of their former bands, for example Saxon, the Animals, the Sugababes and Frankie Goes to Hollywood. However, this case was unusual by virtue of the fact that the claimant/trade mark owner was the 'last man standing' from the original band, which band is still performing.

Samantha Lucas, intellectual property lawyer at Walker Morris LLP who had conduct of the case, said:

"This is a great result not only for Mr Powell but also for the music industry.

"A huge amount of value is tied up in the reputation and brands of the classic bands from the 1970s and 1980s, such as Wishbone Ash, and so the outcome of case will be of substantial interest to the music industry."

The judge, His Honour Douglas Campbell, dismissed Martin Turner's counterclaim and declared both that Andy Powell's European wide Community trade mark rights in WISHBONE ASH to be valid and that such rights had been infringed by Martin Turner's use of the name, MARTIN'S TURNER WISHBONE ASH. The judge rejected Martin Turner's assertion that his previous historical connection with the WISHBONE ASH band provided him with a defence.

Accordingly, the judge awarded Andy Powell an injunction restraining the future use of the name MARTIN TURNER'S WISHBONE ASH, which injunction will be suspended for a short time pending an appeal of the decision which Martin Turner has indicated he is contemplating. The judge also awarded Andy Powell more than £40,000 in costs and has ordered Martin Turner to deliver up all flyers, CD covers and other material which bears the name to which Andy Powell had objected. In addition, Martin Turner was ordered to submit to an enquiry as to what damages and/or unlawful profits were made through his use of the name.

Patrick Cantrill, Head of the Intellectual Property Department at Walker Morris LLP commented:

"Andy Powell's band has been a client of the firm for over 15 years and WISHBONE ASH has been the mainstay of Andy's personal and business life for more than 40 years. All cases of this nature are heavily dependent on their facts and so we are delighted that Andy's difficult decision to enforce his trade mark rights against a former band member, has been completely vindicated such that he can now concentrate on what has been and remains his lifelong passion – the performance and making of music."

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