Hey, hey, hey! Don't infringe Fat Albert!

"If you don't enforce your rights to the trademark you risk (A) the dilution of the mark and (B) losing legal rights to them. So we always enforce our rights."

Thus spoke John P. Schmitt, of the New York firm of Patterson, Belknap, Webb & Tyler- the firm that represents Bill Cosby. I concur with Mr. Schmitt's reasoning. A trademark can potentially last forever, and you thus need to protect it.

According to Phat Free, there is (now was) a band in Kansas called Phat Albert. The guys in the band remember the cartoon called Fat created by Bill Cosby from their childhood. PBW&T sent a cease & desist letter to the guys in Phat Albert, telling them to stop using the mark. Somehow the TV show from the Seventies is still being used a mark- perhaps for more shows, or perhaps a movie?

An argument could be made that a TV show and a band are both entertainment, and confusion is likely. As I reported last week, Survior (TV show) does not infringe Survivor (Band). I think the difference here is that Fat Albert (TV show) had the kids play in a band, so that might extend their trademark use to cover the goods/services produced by Phat Albert.

It begs the question how far bands can go in using trademarks of others. I've been a fan of the San Diego band Spaceman Spiff for a few years. A quick web search revealed a Maryland band named Spaceman Spiff as well. Clearly these are all people who are fans of Calvin and Hobbes, which contained an imaginary space hero called... Spaceman Spiff. I imagine that there was never a trademak filed for the cartoon Spaceman Spiff, but one could argue that there is trademark use, and that people can identify where the name comes from.

Can a tribute band use the original band's name? Perhaps a term made famous by the band? Some Beatles cover bands include Strawberry Fields, Beatlemania, and Rubber Soul. Is this considered fair use? One could argue no, that it is being used solely to earn money off of the name(s) of the Beatles. One could argue yes, in that these terms, although familiar to Beatles fans, are not actual trademarks. I'd like to think that the people who hold the rights to the Beatles IP portfolio decided not to sue their fans.