Creedence Clearwater Mark Revisited

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There’s a bad moon on the rise once again for John Fogerty.  Fogerty, the former lead singer and guitarist for Rock and Roll Hall of Fame inductee Creedence Clearwater Revival, and a man who holds the distinction as being perhaps the only musician in the history of recorded music to be sued for allegedly plagiarizing his own recording in another one of his own recordings, finds himself feelin’ blue again, having been sued last week by his surviving former bandmates, Doug Clifford and Stu Cook, and their production company in the action entitled Poor Boy Productions, Inc., et al. v. John Fogerty, No. 14-cv-00633, in federal court in the District of Nevada.  This time however, he’s not being sued for copying himself – the remaining band members are suing him for trademark infringement, unfair competition and breach of contract, among other claims, for his alleged continued use of the band’s name,  Creedence Clearwater Revival, to which the remaining members of CCR allege they are the rightful owners of a federally registered trademark on.

The instant lawsuit represents a payback of sorts—according to the Complaint, it was Fogerty who sued his former bandmates first, in July of 1996, seeking and obtaining a preliminary injunction against them for performing under the name “Creedence Clearwater Revisited,” which was eventually overturned by the Ninth Circuit Court of Appeals in 1997.  Apparently following the Ninth Circuit’s reversal, the parties entered into a settlement agreement in which the Fogerty agreed to drop his objection to the band’s performing under the “Revisited” name in exchange for payment to Fogerty for their continued use of same.  Additionally the parties agreed that neither of the two remaining members (nor the estate of the third) would authorize a third party derivative of the band’s name without prior written permission of Fogerty himself.  At that time, it appeared that the band’s unfortunate run through the jungle was over.

However, in late 2011, Fogerty gave an interview to a classic rock website, “condemn[ing] and object[ing] to” the band members continued use of the “Creedence Clearwater Revisited”.  As a response to the interview, which is still apparently accessible on the classic rock website, the remaining band members sent a demand letter seeking “cessation of Fogerty’s malfeasance” and alleging a breach of the settlement agreement by him, as well.  After Fogerty failed to respond, the former band member’s ceased paying Fogerty royalties under the terms of the agreement.  Recently, the Plaintiffs claim that Fogerty has demanded payment of those withheld royalties, which have gone unpaid from December 2011 to present, and that he’s threatened litigation of his own if his demands were not met.  This, they say, precipitated and accelerated the Plaintiff’s seeking of a declaratory judgment regarding same.  The Complaint further alleges that now it’s Fogerty who has continued the unauthorized use of the “Creedence Clearwater Revival” mark without Plaintiffs’ permission and that, as such, this creates a likelihood of confusion and provides a false designation of their sponsorship and approval with regard to his continued use of same.

So, where do they go from here?  Obviously, the key to the action remains the terms of the settlement agreement signed between the two sides.  Did Fogerty agree to not disparage his former bandmates use of the “Creedence Clearwater Revisited” name?  Were the former bandmates allowed to withhold royalty payments based upon Fogerty’s disparagement?  Did Fogerty’s words even constitute disparagement of his former bandmates?  More details will trickle out as that settlement agreement and its terms are made more public in the coming weeks and months.  Simply put, the CCR mark is owned by a partnership, presumably made up of the band’s surviving members, though it’s uncertain if this includes Fogerty (who struck out on his own in 1973 following the band’s dissolution).  However, while it does allege the other way around, the allegations of the Complaint do not say that Fogerty, himself, had to seek the permission of the other remaining members if he were to continue use of the Creedence name in any way, derivative or not.  So, while he certainly appears to have been using the CCR mark on his solo tours in the last couple of years which would, constitute an unlawful use of the mark in question if he needed that permission, this information isn’t ascertainable from the Complaint.

It was Fogerty who once told his bandmates, “My voice is a unique instrument, and I will not lend it to your songs.”   In the end, this lawsuit could be interpreted as Clifford and Cook simply responding, “The Creedence Clearwater Revival name is a unique (federally-registered) mark, and we will not lend it to your tours.”  Fogerty has yet to respond to the Complaint.  But, at least in the next few weeks, it appears that his Answer, and perhaps a resolution to this case, will be comin’ up around the bend.

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