Addressing an opposition to the trademark registration of a band name, the Trademark Trial and Appeal Board (TTAB) found the opposer—the originator and continuous user of the name—to be the owner and prior user. Dave Brock v. Nik Turner, Opp. No. 91214199 (TTAB, June 28, 2017) (Ritchie, J).
Dave Brock founded the British band Hawkwind in 1969. The band began selling records in the United States in 1972 and embarked on its first stateside tour in 1974. Since Hawkwind’s inception, Brock continuously produced music and performed under the name Hawkwind. Nik Turner joined the band shortly after its formation and participated in its first US tour, but left the band only a few years later. Subsequently, Turner played under different band names, some of which included the term “Hawkwind.” In 2012, Turner applied for the trademark NIK TURNER’S HAWKWIND, and Brock opposed the registration. After Brock’s application for HAWKWIND was suspended on the ground of likelihood of confusion with Turner’s pending application, Brock brought this opposition.
Turner asserted that Brock had abandoned his common law right to the trademark HAWKWIND because he had not toured in the United States since 2007. Turner argued that he had priority over the mark by virtue of his performance with the band in 1974. The TTAB, however, determined that Brock had no intention of abandoning the mark. The TTAB reasoned that “because HAWKWIND has continued touring elsewhere and HAWKWIND was planning to tour in the United States at least as recently as 2013, taking substantial steps to do so, before the tour was cancelled for reasons related to Mr. Brock’s health, Brock had not abandoned the mark.” The TTAB also pointed out that the musical recordings of Hawkwind are still available in the United States to this day.
The TTAB concluded that, based on substantial evidence, Brock was the only continuous member of the band and “controlled the nature and quality of the HAWKWIND mark for musical recordings and for entertainment services in the nature of live musical performances in the United States” since the 1970s.The TTAB therefore held that Brock retained his established priority date of 1974 for common law rights to the mark, whereas Turner’s earliest priority date for NIK TURNER’S HAWKWIND was 1994. Given Brock’s earlier priority date, Brock’s opposition was sustained.
Practice Note: Musical groups, including both solo performers and groups with multiple members, should register their name as a trademark with the US Patent and Trademark Office to help consumers identify them as the source of their unique sound.