Vocalist/frontman Ed Kowalczyk started the band “Live” in 1991 with three other musicians. Friends in York, Pennsylvania, they had played under various combination until a 1991 contract with Radioactive Records saw them enter the studio under the new moniker. They also formed United Action Front Unlimited as a company to house the band’s new trademark name. “Live” went on to have some hit songs, including “I Alone” and “Lightning Crashes” which seemed to play every other on MTV, back when MTV actually played music videos at times other than 3-6 a.m. From the 8 million selling “Throwing Copper” the song “Lightning Crashes” was the #1 song for 10 weeks on the Billboard charts. “Live” has sold over 20 million albums worldwide, maintaining fans to this day in other countries, even if their star has waned somewhat in the USA. Kowalczyk, with his thin frame, shaved head, long-braid ponytail, cobra dance moves, and apparent shirt-allergy, was certainly the most identifiable member.
In 2009, Kowalczyk left the band to start his own solo career. As one might expect, promotions for his tours and solo albums have often made strong reference to the fact that Kowalczyk was the singer for Live. This has prompted suit from United Action, filed earlier this month in Manhattan federal court, for trademark infringement, trademark dilution, unjust enrichment, and other causes of action. The essentials of the suit is that Kowalczyk inappropriately used the former band’s name to promote himself, essentially misleading the public into thinking that he was still a part of Live, or that his performances are still somehow linked to Live. After he left, Kowalczyk was replaced by Chris Shinn and Live continues on.
This suit is likely to hinge on specific facts and representations. This reporter was actually in a Nevada casino a previous year that Kowalczyk was going to perform in as pat of his solo act, and saw first-hand his promo reel for the tour, which the casino looped repeatedly as they do. While the promo-reel certainly mentioned that Kowalczyk was formerly part of “Live” it did emphasize that he was a former singer for them starting his solo career on his own tour. It did not seem a reasonable person, or even a non-dunderhead, could mistake that Kowalczyk was no longer part of “Live” anymore, as it touted the visionary new direction for music his solo work would take the audience. Of course, NiC has not seen every bit of promotional material out there, and the devil is always in the details in lawsuits.
If the only thing that can be established is that Kowalczyk mentioned that he was the former singer of “Live” and nothing else, this is not a promising case for Plaintiff United Action. As a true statement of fact, Kowalczyk should be free to mention that he was, in fact, the former singer for “Live” if it is not done in a misleading manner. For example, in 1998 Playboy Enterprises sued 1981 Playmate of the Year Terri Welles for touting on her personal website that she was a former Playmate of the Year. Playboy sued, since her site was unaffiliated with them; however, the Court found it did not violate Playboy’s trademark, since Welles was merely stating a true fact and not misleading the public into thinking that Playboy had sponsored her site. Thus, a former bandmate should be free to mention what band he used to be in to promote his solo act, as long as he doesn’t mislead. NiC will be interested to see how this lawsuit plays out.