Passing off claim rejected against former band member

The Intellectual Property Enterprise Court (IPEC) has rejected a passing off claim by one former band member against another relating to the continuing use of the band's name, variously "Love Injection" and "Luv Injection".

The claim was based on the premise that the claimant had "appropriated" the goodwill in the name "Luv Injection" that had accrued to the band before it split up in 2016, but the judge held that that goodwill had neither been assigned nor abandoned, and after the dissolution of the former band it now belonged to all of the former partners in that band.

As the claimant had not recommenced performing under the "Love/Luv Injection" name until around ten months after the split, whereas the defendant had continued performing under the name "Love Injection Sound" immediately after the split, the claimant had no relevant goodwill on which to base his claim for passing off or invalidity. Nor was there any evidence of misrepresentation.

The court also declined to declare the defendant's registered trade mark LUV INJECTION SOUND invalid, and adjourned a counterclaim for the winding up of the former band and distribution of its assets.

The judgment is a reminder of the importance of drawing up a written band partnership agreement which sets out what will happen to goodwill and other assets if the band splits up or gains (or loses) members.