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Hard Rock in Battle Over Cavern Club Trademark

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John Lennon at The Cavern by Duncan Harris on Flickr

John Lennon at The Cavern by Duncan Harris on Flickr

Liverpool, England’s “The Cavern Club” is requesting that the U.S. Trademark Trial and Appeal Board reconsider its decision to allow Hard Rock Café International to use the “Cavern Club” trademark internationally.

The Cavern Club contends that the Hard Rock’s trademark is fraudulent, deceptive, and creates unfair competition. The Cavern also claims that it owns said trademark in Canada, Europe, Australia, and other countries — although notably, not the United States — and that the Hard Rock’s use of the mark dilutes the strength of its mark. Still, the petition (PDF) notes that The Cavern Club has done extensive advertising and marketing in the United States and through American tour operators, particularly for the “Magical Mystery Tour,” which includes visits to various Beatles landmarks, including The Cavern Club.

England’s “The Cavern Club” is best known as being the launching place of the Beatles; other notable acts that passed through the room include The Rolling Stones, The Kinks, Elton John and The Who. The establishment opened in 1957, according to the petition, and has been operating under the name “The Cavern Club” the entire time since then.

The Cavern Club maintains that the Hard Rock’s trademark application included a sworn statement by the group’s representative that was false and made “with the intent to deceive the USPTO” in order to convince it to grant the requested trademark. The statement provided that the representative “believes the applicant to be entitled to use such mark in commerce; to the best of his knowledge and belief no other person, firm, corporation, or association has the right to use the above identified mark in commerce, either in the identical form or in such near resemblance thereto as may be likely, when applied to the goods and services of such other person, to cause confusion, or too cause mistake, or to deceive.”

To support this claim, The Cavern Club notes that as “the world’s leading collector and exhibitor of rock and roll memorabilia,” Hard Rock has actually bought various Cavern Club items to include in its restaurants, “including actual bricks from the wall of The Cavern Club, membership cards from The Cavern Club, and innumerable photographs of The Beatles and others performing at The Cavern Club.” In its petition for review, The Cavern Club avers that Hard Rock “displays these items to capitalize on The Cavern Club’s enduring fame.”

The Cavern Club is now asking the Appeal Board to cancel the Hard Rock’s trademark and enjoin the group from using “The Cavern Club” in conjunction with its business, which it currently does via “The Cavern Club” events rooms in Las Vegas and Boston.

It certainly does seem there is a likelihood of confusion as to the source of goods if Hard Rock were allowed to sell merchandise and otherwise use “Cavern Club” considering both entities are known to be connected to the rock and roll and the music industries.

What do you think? Has the Hard Rock deceptively obtained The Cavern Club trademark?

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December 3rd, 2011 at 10:33 am