The High Court struck out proceedings brought by a music promoter against the members of the 1960s experimental pop band the Bonzo Dog Doo-Dah Band. Members of the band successfully applied to strike out all four claims that were brought against them: conspiracy to injure, malicious falsehood, statutory misrepresentation and trade-mark infringement. The scathing judgment found the causes of action pleaded to be incomplete, despite being tediously lengthy, and supported by evidence that often contained “inadmissible opinion … bare assertion and irrelevancies”.
During the 1960s, the band released several albums. In 2005, Mr Carruthers, a promoter and manager, organised an anniversary concert. Merchandise was sold, further concerts took place, and an anthology was made. In October 2015 Mr Carruthers, through the company Anglo Atlantic Media Ltd, the claimant in this case, filed a trade mark in the band’s name, which was accepted by the Intellectual Property Office. The band then successfully applied to the IPO to have the trade mark declared invalid. The claimant issued claims in the High Court, and the defendants applied for strike-out.
ICC Judge Briggs found each of the four claims to be totally without merit. Among other reasons:
- Conspiracy to injure – The claimant failed “to plead in any meaningful way an intention by two or more people to injure”.
- Malicious falsehood – The statement complained of was contained in the statements of case in the IPO proceedings, and the defendants were protected by absolute privilege.
- Statutory misrepresentation – The claimant did not particularise the alleged representation, the inducement or the contract supposedly entered.
- Trade-mark infringement – There could be no infringement of the mark when the mark was improperly registered and cancelled as found by the Registrar.
The case serves as a useful reminder of several legal and procedural principles. Claimants should be mindful that an attempt to raise claims that have already been decided by a court of competent jurisdiction may give rise to issue estoppel and might be struck out as an abuse of process. Promoters, managers and agents in the entertainment industry should be conscious of the fiduciary duties that they may owe to artists, and should avoid attempting to obtain any rights in their principal’s intellectual property where there is a conflict of interest, or where there is a lack of informed consent.
Finally, Judge Briggs pithily observed that Mr Carruthers “raises every point he can think of, regardless of relevance, to achieve his aim”. His scathing remarks are a reminder – perhaps most useful for litigants in person – of the importance of concise drafting and ensuring that pleadings are complete.
To read the full article, click here. Written for Entertainment Law Review.