New article about lawsuit(next date March 12), 1/10/13 Options

[SJN1279]

http://www.law360.com/newyork/articles/406...ver-use-of-name
Band's IP Co. Fails To Settle With Ex-Singer Over Use Of Name
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July 17, 2012


Live's Ex-Singer Sued Over Use Of Band Name

Share us on: Twitter Facebook LinkedIn By Richard Vanderford
Law360, New York (January 10, 2013, 6:48 PM ET) -- The company that controls trademarks for the band Live has been unable to reach a deal with former lead singer Ed Kowalczyk over his use of the band's name in promoting his solo career and will litigate the case, the parties said Thursday.

“The parties had a lengthy mediation but were unable to resolve it and are prepared to move forward,” Jeffrey M. Movit of Mitchell Silberberg & Knupp LLP, an attorney for Live IP company Action Front Unlimited Inc., said at a hearing in Manhattan before U.S. District Judge Jesse Furman.

Kowalczyk and three other original members of Live formed Action Front in 1989 as the company behind the Pennsylvania act, which peaked in popularity in the 1990s. Action Front claims Kowalczyk, which struck out on his own in 2009, violates Live's trademarks by using phrases like “Ed Kowalczyk of Live” to promote himself.

The two sides had put off discovery to engage in a long mediation. Unable to reach a deal, Action Front might now move for summary judgment, Movit said.

“There's a well-developed body of cases involving former members of a band using a mark,” Movit said. “We believe based on the case law we will be able to move for summary judgment.”

The two sides are due to return to court March 12 for another conference. They have not conclusively ruled out a settlement, said Kowalczyk's attorney, Brett Perala of Rosenberg & Giger PC.

Action Front said Kowalczyk did not disclose when he was marketing himself that he had dropped out of Live.

“Kowalczyk is advertising and otherwise promoting his musical performances at venues nationwide under the infringing name and mark 'Ed Kowalczyk of Live,'” it said in its complaint. “By virtue of this conduct, [Kowalczyk] seeks to mislead both concert promoters and the general public into wrongly believing that his musical performances are affiliated with, or indeed feature, the band Live.”

An attorney for Kowalczyk, John Rosenberg, told Law360 on Wednesday that the case was an attempt by the other original members of Live to “punish” the former lead singer for going solo.

“This is the latest tactic by Mr. Kowalczyk's former bandmates to punish him for successfully pursuing a solo career,” Rosenberg said. “Mr. Kowalczyk views these claims as frivolous and intends to vigorously defend in the litigation.”

Live, whose several popular singles include “Lightning Crashes” and “I Alone,” was formed in 1991 by Kowalczyk, Patrick Dahlheimer, Chad Gracey and Chad Taylor. The group had grown up together in York, Pa., and performed together during the 1980s under a different band name.

The complaint makes claims of federal trademark infringement and dilution, false designation of origin, and state trademark dilution related to Kowalczyk's alleged misconduct.

Action Front Unlimited is represented by Jeffrey M. Movit of Mitchell Silberberg & Knupp LLP.

Kowalczyk is represented by John Rosenberg and Brett Perala of Rosenberg & Giger PC.

The case is Action Front Unlimited Inc. v. Ed Kowalczyk, case number 1:12-cv-05483, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Scott Flaherty. Editing by Rebecca Flanagan.

[SinfulEyes]

http://www.law360.com/newyork/articles/406...ver-use-of-name
Band's IP Co. Fails To Settle With Ex-Singer Over Use Of Name
Printable Version Share Article Rights/Reprints Editorial Contacts
July 17, 2012
Live's Ex-Singer Sued Over Use Of Band Name

Share us on: Twitter Facebook LinkedIn By Richard Vanderford
Law360, New York (January 10, 2013, 6:48 PM ET) -- The company that controls trademarks for the band Live has been unable to reach a deal with former lead singer Ed Kowalczyk over his use of the band's name in promoting his solo career and will litigate the case, the parties said Thursday.

“The parties had a lengthy mediation but were unable to resolve it and are prepared to move forward,” Jeffrey M. Movit of Mitchell Silberberg & Knupp LLP, an attorney for Live IP company Action Front Unlimited Inc., said at a hearing in Manhattan before U.S. District Judge Jesse Furman.

Kowalczyk and three other original members of Live formed Action Front in 1989 as the company behind the Pennsylvania act, which peaked in popularity in the 1990s. Action Front claims Kowalczyk, which struck out on his own in 2009, violates Live's trademarks by using phrases like “Ed Kowalczyk of Live” to promote himself.

The two sides had put off discovery to engage in a long mediation. Unable to reach a deal, Action Front might now move for summary judgment, Movit said.

“There's a well-developed body of cases involving former members of a band using a mark,” Movit said. “We believe based on the case law we will be able to move for summary judgment.”

The two sides are due to return to court March 12 for another conference. They have not conclusively ruled out a settlement, said Kowalczyk's attorney, Brett Perala of Rosenberg & Giger PC.

Action Front said Kowalczyk did not disclose when he was marketing himself that he had dropped out of Live.

“Kowalczyk is advertising and otherwise promoting his musical performances at venues nationwide under the infringing name and mark 'Ed Kowalczyk of Live,'” it said in its complaint. “By virtue of this conduct, [Kowalczyk] seeks to mislead both concert promoters and the general public into wrongly believing that his musical performances are affiliated with, or indeed feature, the band Live.”

An attorney for Kowalczyk, John Rosenberg, told Law360 on Wednesday that the case was an attempt by the other original members of Live to “punish” the former lead singer for going solo.

“This is the latest tactic by Mr. Kowalczyk's former bandmates to punish him for successfully pursuing a solo career,” Rosenberg said. “Mr. Kowalczyk views these claims as frivolous and intends to vigorously defend in the litigation.”

Live, whose several popular singles include “Lightning Crashes” and “I Alone,” was formed in 1991 by Kowalczyk, Patrick Dahlheimer, Chad Gracey and Chad Taylor. The group had grown up together in York, Pa., and performed together during the 1980s under a different band name.

The complaint makes claims of federal trademark infringement and dilution, false designation of origin, and state trademark dilution related to Kowalczyk's alleged misconduct.

Action Front Unlimited is represented by Jeffrey M. Movit of Mitchell Silberberg & Knupp LLP.

Kowalczyk is represented by John Rosenberg and Brett Perala of Rosenberg & Giger PC.

The case is Action Front Unlimited Inc. v. Ed Kowalczyk, case number 1:12-cv-05483, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Scott Flaherty. Editing by Rebecca Flanagan.

Well, that's the latest I guess. Two very different view points from both parties obviously. I wonder if there is a summary judgement, how much CCP will be awarded? Anyone with any insight on that?

[mfitz804]

Well, that's the latest I guess. Two very different view points from both parties obviously. I wonder if there is a summary judgement, how much CCP will be awarded? Anyone with any insight on that?

Summary judgment would only establish liability. There would still need to be a trial on damages to determine an amount. One could only get summary judgment on damages in very particular circumstances, and even then there would be issues such as costs, disbursements, interest, and possibly attorneys' fees that would still need to be determined.

[SJN1279]

Summary judgment would only establish liability. There would still need to be a trial on damages to determine an amount. One could only get summary judgment on damages in very particular circumstances, and even then there would be issues such as costs, disbursements, interest, and possibly attorneys' fees that would still need to be determined.

In other words, proceeding will be a waste of resources and time for all parties.

[SinfulEyes]

In other words, proceeding will be a waste of resources and time for all parties.

I think at the end of the day as long as Ed can't use the phrase "of Live" anymore CCP will be satisfied.

[SinfulEyes]

It also appears it's not all about the money with CCP, unlike it is with Ed. I feel CCP want to make sure everyone knows about Ed's shady ways and deserves to be publically dragged through the mud for what he did to them personally and to the band Live.

[SJN1279]

I think at the end of the day as long as Ed can't use the phrase "of Live" anymore CCP will be satisfied.

Ed using of Live would actually be beneficial to Live if and when they started touring again(and would also hurt Ed on his acoustic tour).

[SinfulEyes]

Ed using of Live would actually be beneficial to Live if and when they started touring again(and would also hurt Ed on his acoustic tour).

Ed's legacy is surely already tarnished, but at this point, Ed just needs to pay for what he did to the band driving them into the ground like that.

[Live4Life]

Pretty sure Ed doesn't really care about money at this point. Otherwise he would'nt be doing free benefit shows.
He didn't do anything to the band. The band was pretty much done even bfore the crap started.
Frankley, i think it's childish as hell what they are ALL doing. They need to grow up and move on.
Eds rep is far from tarnished. He is doing shows, writing, recording, people love the guy. Have you seen his facebook page lately? Umm yeah.
You ed haters can do your best going around stalking people trying to recruit new haters but it doesn't even make a dent.

This post has been edited by Live4Life: Jan 11 2013, 5:06 pm

[SinfulEyes]

Pretty sure Ed doesn't really care about money at this point. Otherwise he would'nt be doing free benefit shows.
He didn't do anything to the band. The band was pretty much done even bfore the crap started.
Frankley, i think it's childish as hell what they are ALL doing. They need to grow up and move on.
Eds rep is far from tarnished. He is doing shows, writing, recording, people love the guy. Have you seen his facebook page lately? Umm yeah.
You ed haters can do your best going around stalking people trying to recruit new haters but it doesn't even make a dent.

Yeah that's why he had to sell his mansion in LA and move to the ghetto.

[Live4Life]

Yeah that's why he had to sell his mansion in LA and move to the ghetto.

Dude, do you know anything about the guy REALLY? He did not HAVE to sell it.
He wanted to be where he is.
My God. I thought you knew everything.
You do know that he is still pretty well off right? hahaaaaa
They guy isn't an idiot. He invests his money wisely i'm sure. They all do.
That is why this whole name thing is anal as hell.

[andymbj]

I'm not sure anal is the right word to describe the argument over the name. I think it's a necessary process. A situation where Ed Kowalczyk from Live and the band Live are touring simultaneously would be farcical, and confusing for many. Better to let the courts sort it out.

This post has been edited by andymbj: Jan 11 2013, 7:08 pm

[Live4Life]

Oh trust me, the only thing people are going to be confused about is the fact that when they go to see live ..ed won't be the one singing. You have to remember..A LOT of people don't even know about the break up. There are so many people that have no clue because they don't do internet.
lol

Sad but true and yeah, fighting over a band name?
Yeah, anal is the right word. To me anyway.

[SJN1279]

Oh trust me, the only thing people are going to be confused about is the fact that when they go to see live ..ed won't be the one singing. You have to remember..A LOT of people don't even know about the break up. There are so many people that have no clue because they don't do internet.
lol

Sad but true and yeah, fighting over a band name?
Yeah, anal is the right word. To me anyway.

I eventually see ccp selling the live name back to ed at some point down the line.

[themaestro]

I eventually see ccp selling the live name back to ed at some point down the line.

Never