First and foremost, I must confess that I am a fan of Marvin (now “Michael”) Aday, better known to the world as the singer Meat Loaf. I have the seven anthems from Bat out of Hell Part I permanently etched on my iPod, and every word of Phil Rizzuto’s monologue from Paradise By the Dashboard Light memorized. I am also a trademark lawyer who generally represents Plaintiffs in Court against infringers, including having litigated major cases involving “replicas” and “knockoffs.” So it was with great interest and pro-Meat Loaf bias that I read about the singer's recently filed federal Complaint against U.K.-based impersonator Dean Torkington.
In contrast to the legitimate MeatLoaf.net site, Dean Torkington apparently registered the Internet domain name MeatLoaf.org. MeatLoaf.com was apparently already taken (not by the rocker, but by Rebeccah’s Fine Foods, who registered it in 1995, and who doesn’t seem to have done much with it since then).
Initially, it is worth noting that Torkington’s website and materials identify himself as a “tribute.” Tribute bands and celebrity impersonators present a challenging (if not amusing) area of intellectual property law.
|The Torkington "mini-tour bus."|
With most tribute bands, there is not likely to be much evidence of actual confusion at the point when an ordinarily prudent consumer buys a ticket to a tribute show. (Such a duped consumer would be no true fan of Meat Loaf, as Torkington is at best, a poor-man’s Meat Loaf). I must confess that if I saw Torkington’s tiny little "tour bus" parked in the lot, I would most certainly NOT suspect that the genuine Meat Loaf was nearby, and would not begin my search for an autograph.
Rather, in such cases, a Plaintiff must rely on more creative applications of trademark law, such as the doctrine of initial interest confusion, otherwise known as the “bait and switch.” Under this established concept, even ordinarily prudent consumers are initially confused and attracted to the second-comer’s product or service, only to later discover the lack of authenticity. Such infringement is still legally actionable, as it serves to divert interest and undermine the brand owner’s rights.
Aday references this theory in his Complaint, in which he asserts that true fans are searching for the genuine website on the Internet, only to discover Torkington’s close imitation. Further, Torkington's use of logos and images is a little too close for comfort, and there is even an allegation that Torkington created a YouTube handle "Michael Aday" to fraudulently impersonate the Plaintiff.
Of course, because the nature of all tribute bands is, in a sense, expressive and therefore potentially constitutionally protected free speech, tribute bands can readily assert the nominative fair use defense, which can be applied where the defendant's use of the trademark refers to something other than the real product. A federal court in the New Kids on the Block v. News America Publishing Inc. case articulated a three-part test for nominative fair use:
First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.
There are numerous Meat Loaf tribute bands which may satisfy this test, for example: Dashboard Lights, Anything for Loaf, and my own personal favorite, Peat Loaf.
Finally, and potentially problematically for Mr. Torkington, if his domain name registration of MeatLoaf.org is deemed to have been in bad faith to capitalize on consumer confusion, he would not only lose the domain name, but face up to $100,000 in statutory damages.
In conclusion, Mr. Torkington may have come a little too close for comfort with his imitation of life. In the words of the true Meat Loaf’s classic song, Torkington’s tributes will be gone when the morning comes.