Kansas Coffee Shop Targeted By 1980's Hair Band's Trademark Lawyers

1980's Hair Band Twisted Sister in Concert / Wikimedia Commons

Sandi Russell, along with her sister, Nancy Hansen, are two sisters operating a small coffee shop in Mission, Kansas.  Their coffee shop's name is "Twisted Sisters," and their domain name is www.TwistedSistersCoffeeShop.com.


Russell recently reported that she received a formal cease and desist letter telling them to change the name because it has been trademarked by the 1980's hair band Twisted Sister which owns and operates www.TwistedSister.com.


According to the letter, the Twisted Sister musical group coined the name “TWISTED SISTER” in 1973, and “the
juxtaposition of those two words never appeared prior to the creation and adoption of the mark by the band.”

Continuously since then, the band has had extensive media publicity and exposure of its mark, having released at least 12 full albums and 4 DVDs since 1973 under the TWISTED SISTER mark, which have been distributed and
 sold throughout the United States and worldwide. 


Consequently, according to its lawyers, the band’s trademark is well-established and legally deemed "famous."

It is true that Twisted Sister has a federally registered and incontestable federal trademark (1,098,366) issued in 1978, but that trademark only covers: "ENTERTAINMENT SERVICES RENDERED BY A VOCAL AND INSTRUMENTAL GROUP."

The letter notes that the band has been successful in requiring that the Twisted Sister Bakery in Chicago and Twisted Sister Pizza in Massachusetts change their names.

Not mentioned in the letter is that third parties have apparently received numerous approved trademarks for marks using "TWISTED SISTER" (and variants), such as for Twisted Sisters Wine (3,443,617), Twisted Sisters clothing boutique (3,216,315), Twisted Sisters Our Business Is Dyeing colored yarns (3,027,439) and Twisted Sista for hair care products (3,947,150).  All of those are live trademarks that appear to have nothing to do with the band.

Therefore, to establish even a prima facie case of trademark infringement, the lawyers would need to plead that the coffee shop's continued use of the “Twisted Sisters” name in connection with a small coffee shop is likely to lead to consumer confusion as to endorsement, sponsorship or affiliation with the 1980's band.  

This claim would likely be an uphill battle from an evidentiary standpoint, and would probably require an expensive survey expert. One suspects that instances of actual confusion among consumers would be difficult to locate.

However, assuming the trademark is indeed “famous” and worthy of legal protection under the Federal Trademark Dilution Act, the band need only prove that the use of the unauthorized name is likely to dilute, either through tarnishment or blurring, the distinctive nature and fame of the band’s mark.  In this context, this claim may be easier to plead even in the absence of confusion, as there is no doubt that the Twisted Sisters Coffee Shop likely "calls to mind" the 80's band, potentially blurring its distinctive quality.

Faced with the band’s demand that it change its name, the coffee shop’s owners reportedly intend to do just that.  As of today, the coffee shop's website is no longer operational.

Legal Threats Over Use of Music at Political Events Escalate

Music has been played throughout American history during political events, to rouse emotion and stir patriotism.

However, as intellectual property laws evolve along with the culture of politics, several issues have risen to the forefront along with the ongoing rancor between the permanent residents of Hollywood/Nashville and Washington D.C.  As we have previously discussed, Presidential candidates are frequent targets of musicians' ire for using their songs at political rallies.

Most recently, R.E.M. objected to Fox News' use of "Losing My Religion" during coverage of the 2012 Democratic National Convention.  The pro-Democratic band argues that the use of the song falsely conveyed that it agreed with the conservative networks' critique of the DNC as secularist, stating:

REM in Concert / Wikimedia Commons / Flickr user Stark (Stefano Andreoli)

"R.E.M.'s "Losing My Religion" was used in the Fox News coverage of the Democratic National Convention last night. R.E.M. today, through its music publisher, Warner-Tamerlane Music, demanded that Fox News cease and desist from continuing its unlicensed and unauthorized use of the song." 

Michael Stipe added, "We have little or no respect for their puff adder brand of reportage. Our music does not belong there."

The intellectual property issues break down along relatively clear legal lines.

Copyright:  A songwriter possesses copyright to the lyrics and melody of a song. Additionally, performers of the song possess independent copyrights in their recordings of those songs. Both of these copyrights are licensed to the public through performance rights organizations, such as ASCAP and BMI. Most large public venues, such as sports arenas and convention halls, purchase "blanket" licenses from ASCAP and BMI, that permit them to publicly perform any of the songs contained in their catalogs.  (The songwriters and performers each get a cut of the revenue collected through a separate agreement with the performance rights organizations).

For example, at a baseball game, you may hear the choruses of Queen's "We Will Rock You," Twisted Sisters' "We're Not Gonna Take It" and other rousing anthems repeatedly.  The stadium or sports arena has typically paid a recurring license fee to publicly perform these and other songs within their arenas during events, without many restrictions. Twisted Sister then regularly gets a check from ASCAP/BMI.

However, occasionally, there is a technical copyright violation. For example, if the baseball game is broadcast on national television and the song is heard in the background, the musicians may argue that the license agreement did not cover the "synchronization rights" required for television broadcast (although other license agreements may cover this contingency).

Trademark/Right of Publicity/Implied Endorsement:  In the context of political conventions that occur within the licensed arenas, however, things get trickier.  While a public arena may possess a paid-up license to publicly perform the music under their ASCAP/BMI terms without violating songwriters' or performers' copyrights, some musicians object to their songs' use during political events on separate legal grounds.  Specifically, they argue that the politicians' use of the songs during political events in those arenas nonetheless falsely implies endorsement and sponsorship.

As previously noted, there have been a number of lawsuits filed on these grounds against candidates in both political parties.

ASCAP has issued a helpful summary of the law warning politicians to be aware that their public performance licenses do NOT guard against the Trademark/Right of Publicity/Implied Endorsement theories.

It is this authors' personal view that such alternative theories may have legal merit, depending on the facts.

For example, let's assume that a musician can prove in court that consumers (a/k/a voters) recognize a particular song as a form of source identification.

That is, if we assume that a performer can prove that the public immediately perceives a song as having direct associations with the composer and/or the band that performed the song (especially ones that are politically active and highly visible), then the song may be able to function as a trademark.

Further, if a plaintiff can then prove that a politicians' use of that song is likely to confuse a sufficient percentage of the public into believing that the songwriter/band has endorsed that politician or his/her political party's views, then that plaintiff can demonstrate all that he needs to satisfy a court that there is a likelihood of confusion and irreparable harm to his brand.

On the other hand, if the public is savvy enough to assume that the use of a song during a political event does not necessarily reflect the endorsement or approval of the songs' writers or performers and is not likely to be confused, the Plaintiff would not be able to satisfy his burden of proof, and would lose in court.

Finally, the defendant would presumably assert a "fair use" defense, claiming that the First Amendment's guarantee of free speech immunizes it from the accused intellectual property violations.  

Such a defense would probably fizzle out, if the plaintiff could demonstrate palpable harm from consumer confusion as described above.

Kanye West Even Stronger After Winning Appeal

Kanye West Performing / Matthew Field

Kanye West has won the appeal of a dismissal of a copyright case filed against him by producer Vincent Peters.

In Vince Peters, p/k/a “Vince P.” v. Kanye West, et al., recording artist Kanye West and music companies Roc-A-Fella Records, LLC and UMG Recordings, Inc. had been accused of copyright infringement involving West’s Grammy Award-winning song Stronger.

Peters alleged that they had infringed his copyright by copying portions of Peters' song Stronger, including the well known maxim “that which does not kill me makes me stronger.” 


Defense counsel moved to dismiss the case on the grounds that there were no protectable similarities between the two songs at issue.  

The District Court of the Northern District of Illinois agreed and granted West's motion to dismiss on March 9, 2011. 


The Court also rejected Vince P.’s argument that the original combination of the five words and phrases was protectable.

Lastly, the Court reviewed the two sets of lyrics and determined that lyrics were not substantially similar, and that, “just as a photographer can not claim copyright in the use of a particular aperture and exposure setting,” a common rhyme scheme does not qualify as original expression.  


On August 20, 2012, in a decision written by Judge Wood, the U.S. Court of Appeals for the Seventh Circuit affirmed the District Court's decision, finding that none of the allegedly similar words and phrases contained in the songs were protectable under copyright law.  

The District Court had noted that the phrase was a hackneyed one, tracing it back to 19th century German philosopher, Friedrich Nietzsche:

"Although the fact that both songs quote from a 19th century German philosopher might, at first blush, seem to be an unusual coincidence, West correctly notes that the aphorism has been repeatedly invoked in song lyrics over the past century."

Insane Clown Posse: Branding Geniuses or Violent Gang Subculture?

ICP Fans, image from InsaneClownPosse.com website

From both a musical and branding perspective, the Insane Clown Posse (often dubbed "ICP") are a bizarre phenomenon.

The ICP is a rap duo composed of Joseph Bruce and Joseph Utsler, who perform under the respective personas of the "wicked clowns" Violent J and Shaggy 2 Dope.

The duo performs a style of hardcore hip hop known as horrorcore known for its elaborate live performances.  The duo has earned two platinum and five gold albums.

ICP may be counter-cultural, but they are very brand-conscious, and have developed an incredibly dedicated following of fans surrounding their musical genre.  They are no strangers to successful merchandising, either.

Logo on Tote Bag ($10 on ICP website)

For example, the band adopted the "FAYGO" brand soft drink, by referencing the relatively unknown Detroit-based soda brand in several songs.  The group's fans are widely credited with supporting the company.

ICP's hardcore fans, dubbed "Juggalos," are such a dedicated and cohesive subculture that the FBI recently categorized them as organized criminals.

The FBI's 2011 National Gang Threat Assessment report identified Juggalos as a "hybrid gang" akin to violent groups like the Crips and Bloods.

But ICP is now fighting back for its beleaguered fans, by filing a civil lawsuit against the FBI for unlawful discrimination.

The lawsuit seeks to stop the FBI from "violat[ing] the rights of Juggalos on the mistaken belief that they are 'gang members,'" according to a statement posted on a new website, JuggalosFightBack.com.

Being labeled a "gang member" can result in much harsher penalties for certain crimes, according to the Justice Department’s National Gang Center.

To fight back, the Insane Clown Posse’s new website is offering a free legal review to any ICP fan who may have been profiled or harassed.  Fans can fill out a form online, for potential inclusion in the lawsuit.

“We’re not attacking the FBI, but they got this wrong,” Bruce said in a statement. “The Juggalos are not a gang, and that needs to be fixed."

The lawsuit is “probably the biggest announcement of our career,” the duo said via Twitter.  “Yes we’re nervious [sic].”

It seems that even wicked clowns are scared of litigation.