Lady A v. Lady A

One of my friends, entertainment lawyer Robin Mitchell Joyce, wrote an article for a bar journal probably two  decades ago in which she stated that it was next to impossible to find a good band name that had not already been taken. I think about this all the time and realize that its more true than ever.  This was especially hard in the pre Google era when you had to use expensive search companies to do far flung federal and common law and state searches to try and find out if a particular name was available. Even with the most extreme diligence, one can never be 100% sure that a name is truly available free and clear.

 And now you have the strange case of Lady Antebellum, the country trio who have been active since 2006 but recently decided to shorten their name to LADY A "after much personal reflection, band discussions, prayer and honest conversations with some of our closest black friends and colleagues," according to an article in The New York Times.

 The only real problem with this is that "Lady A" is also the professional name of a Seattle based blues singer whose real name is Anita White and who has used the name for two decades.  It would seem that a quick Google search would have revealed this troubling fact.  But the plot thickens.  A search of the Patent and Trademark Office records  reveals that the band's corporate entity, Lady A Entertainment LLC (which itself was created on August 30, 2010) owns trademark registrations for the "Lady A" mark going back to 2010 and 2013.  In other words, while the Tennessee trio might not have known about Seattle's Lady A, they conceivably had a good faith belief that they could use the name since they had several registered trademarks in the name going back a decade.

 It is not clear what will happen with Lady A and Lady A.  It looks as if after an exchange of angry words, the parties have somehow agreed to co-exist but this does bring to mind the pitfalls of dealing with trademarks in group names.  Back in the dark ages when I was in law school, we learned that it is  possible to have specific geographical limitations to trademarks,  but that seems to be a quaint notion in the Internet age.  The Trademark Office  does allow owners to co-exist with and allow others to use marks for certain limited purposes, so presumably, that is what will happen here.  I don't think that this is a battle that either Lady A or Lady A wish to fight. There don’t seem to be any great options.

Obama, Higher Ground and the Patent and Trademark Office

Everybody has problems with the Patent and Trademark Office. Even former President Barack Obama has problems with the Patent and Trademark Office.  I read an interesting story recently about how the former president and his wife, Michelle are setting up an entertainment production company.  In the course of organizing the new venture, Higher Ground Productions, they attempted to register a federal trademark for the name Higher Ground Productions.  The Trademark Office refused registration because of an earlier registration for a company known as "Higher Ground Enterprises" owned by Hanisya Massey.

The Trademark Office routinely rejects trademark applications when the examiner believes the marks are too similar and could cause confusion in the marketplace.  This can be extremely frustrating to the trademark practitioner because you cannot always predict when the Trademark Office is going to determine that marks are too similar – often their reasoning is unclear.  But there is no denying that "Higher Ground Productions" and "Higher Ground Enterprises" are pretty darn similar.

There has been some pretty funny reporting on the saga as the parties attempted to negotiate some kind of settlement.  According to the New York Times, at one point Massey requested screen rolls in some of the Obama's forthcoming productions.  However, the dispute appears to have become ugly with the Obamas now seeking cancellation of Massey's trademark on technical grounds based on alleged non–use.  This can occur when a trademark owner can be shown not to be actively using a mark. However,  in my experience there's a pretty low threshold needed in order to prove continued  use. 

 Maybe the Obamas just like the Stevie Wonder song-- but perhaps they should contemplate coming up with a new name…