In November 2019 the 1960’s rock artists ‘The Bonzo Dog Do Dah Band’ won the right to carry on performing under that name. The story is at its heart a dispute between the band and Bob Carruthers, one-time manager and promoter of the band played out in a tussle for rights in the name. It shows how in the absence of parties properly discussing the business they want to do with each other and setting this out in a contract, trade mark rights can take centre stage in resolving the dispute. Neither party was legally represented until the very end. As is typical in this scenario the battle was long winded, time consuming and costly. The brief facts are as follows.
Originally formed in the 1960’s the Bonzo Dog Do Da band reunited in 2005. They took on a promotor Bob Carruthers. The band and Mr Carruthers fell out. The band members applied to register the name of the band to ensure they could continue to perform under the name but found they were blocked by an earlier version of the band name in stylised form which had been filed by a company of which Mr Carruthers is a director. Mr Carruthers claimed to have made the filing for the band name to protect his investment. On the basis that since 2005 he had produced everything the band had done and promoted the band he said goodwill attached his company and not the band itself.
Several celebrities gave evidence as to the entity with which they associated the name with, including Stephen Fry. Ultimately the band triumphed. While the Hearing Officer accepted that Mr Carruthers did most of the leg work post 2005, his company could not claim the goodwill associated with the name which naturally flowed to the band. This he said was because the public would regard the band responsible for the quality of the music and the entertainment under its name. It is inevitable that members of the public would believe that the goods and services of Bonzo Dog Do Dah band were that of the band. Usually that would be the end of the story, but not here.
After that the case made its way to the High Court in February, Carruthers claimed that the band was guilty of a conspiracy to injure his company and malicious falsehood. It came before the Court in February where the case received short shift from the judge who dismissed it. Dismissing the claim, the judge heavily criticised the evidence in Carruthers’ 74-page witness statement as “inadmissible opinion, …. bare assertion and irrelevancies.” The claim said the judge was “totally without merit.” Then possibly in order to make sure that the matter was put to bed once and for all the judge awarded costs on an indemnity basis to the band. This means that Carruthers will have to pay everything that the band had expended on defending itself against the action and is a way of punishing litigants who are considered by the court to have acted unreasonably.
The case brought in the high court was clearly doomed to failure from the start. It would most likely not have been brought had Carruthers taken legal advice before pursuing the case. The case is a prime example of emotions governing business decisions. These two things are never a good mix. And on that note, time for a break I think. Now where did those Bonzo Dog Do Dah LP’s get to.
Written by Margaret Briffa, Solicitor
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