One Direction case highlights perils of trademark infringement

 

One Direction, the most successful British band to tour the United States since the Beatles, have found themselves at the centre of a trademark dispute. It seems that there was already an obscure band of that name in California. One Direction’s creator, media mogul Simon Cowell, has promised to fight tooth and nail to let the X-Factor finalists keep their name.

A familiar trademark problem

One Direction are not the first band to face being renamed. To name just a few, Led Zeppelin, Blink 182, and fellow X-Factor Contestants Little Mix were The New Yardbirds, Blink and Rythmix respectively. However, none of them had quite reached the heights of One Direction when the change occurred.

There are doubtless many smaller, less famous bands out there who share each other’s names. Ordinarily it does not matter, but once a band starts to make it big, their less-successful namesakes may start to feel hard done by. The prospect of a huge out-of-court settlement might also make it tempting to try and cash in on the success of the now-famous name.

Damage and compensation

It might initially seem strange that the less-successful band can sue at all. After all, there is clearly no question of ‘passing off’, that is, pretending to be another business in order to benefit from their reputation. In fact, it is rather more likely that the audience would confuse the original band for the later manifestation. The damage is therefore considered purely in terms of the offence to the band’s reputation and the confusion caused to their audience.

As with many areas of intellectual property law the amount of compensation that can be claimed is set by statute, rather than the loss the injured party may have actually suffered. Consequently, in the case of One Direction, the Californian version is suing for six figure sums and has even put in a claim for three times the bands’ UK profits.

Whichever One Direction wins the case, the consequences will have significant repercussions for the other, whether in legal expenditure or loss of some of their established reputation.

 

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