A decision was handed down by the High Court last week dealing with the use of references to the well-known 1970s group The Rubettes – responsible for the 8 million record selling “Sugar Baby Love”.
This was the culmination of a long simmering dispute which the various parties had attempted to settle by agreement over three years ago. The settlement agreement had provided that there could be two Rubette bands: one “The Rubettes Featuring Alan Williams” and the other “The Rubettes Featuring Bill Hurd”. These individuals were two of the original members of the group. The agreement also specified that neither band would trade as The Rubettes from an agreed date. Both parties then alleged that the other had been in breach of the agreement by allowing the impression to be given on websites, in advertisements and other promotional material that they were the original Rubettes. The court held that there were breaches on both sides.
The case related specifically to the groups’ circumstances and the terms of their settlement agreement, so it is difficult to draw too much general guidance from the decision. But there are useful pointers for managers, agents and lawyers dealing with the not infrequent phenomenon of two bands either agreeing or being entitled to use names which refer to their previous glories.
In a lengthy judgment the court considered the distinction between trading as The Rubettes and trading off the reputation of the original band. It was clearly the intention of both sets of Rubettes to trade by association with the original band’s reputation but neither wanted the other to be able to give the impression that it was the original band. The former was permissible within the boundaries to be agreed but the latter would defeat the object of the settlement. So when a band splits up and the band members try to agree how they can continue to benefit from goodwill associated with their previous careers, careful consideration and drafting is needed to spell out exactly what is and is not permissible.
The court also made clear in its judgment that band members in such circumstances did have some responsibility to control the activities of third parties such as agents, promoters and those running authorised websites. The judgment was that each band should have taken reasonable steps in advance of any promotion to prevent the description of their band as the original band – and if they were so described, then they should take reasonable steps to correct the errors. The judge stopped short of insisting that contracts with agents and promoters in this case should have spelled out the restrictions but clearly it would have assisted both parties if they had.