TAKING THE LEAD
Campbell sought to block the injunction but the court found in favour of the remaining members, stating that they have a “realistically arguable basis” for their complaints. A date for the full trial is expected to be announced soon.
The name UB40 is not registered as a trademark although the online records of the European Intellectual Property Office show that Campbell applied to register it as a trademark in his name in 2013. The application was withdrawn following opposition from the remaining members of the original band and it appears that no attempts had been made to register UB40 as a trademark prior to this.
The issue gives rise to an interesting legal debate. There are no set rules with regard to who owns a band name but the issue usually falls under trademark law. It is not uncommon for band names to be registered as trademarks by the band’s record label or producers but in the absence of a trademark registration, who owns the rights to a band name?
From a legal perspective, it must be borne in mind that the function of a trademark is to serve as a badge of origin — to distinguish the goods or services of one party from the same or similar goods or services of another party. Trademarks are protectable in relation to the goods or services in relation to which they are used or intended to be used.
A band name would normally be registered in respect of entertainment and related services, including live performances in class 41 of the International Classification of Goods and Services, which is followed by most jurisdictions. Registration could also be obtained in goods classes covering merchandise featuring the band’s name, such as digital and other records and CDs as well as clothing and other products.
Next to the actual songs and albums produced by a band, which would be protected under copyright law, the band’s name is arguably its most valuable asset and can be commercially exploited for substantial profits resulting from record sales, performances and merchandising.
Turning to the question of who has the right to a band’s name in the absence of a trademark registration or specific agreement, as mentioned there are no set rules and the issue must therefore be determined with regard to trademark law principles.
From the perspective of South