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The dispute between several members of the group arose over the use of the name ‘Hyperbole’, that is, the legality of the use of the national brand.
The plaintiffs, members of the Hyperbole group, applied to the court for an injunction prohibiting the defendants from using the plaintiffs’ trademark ‘Hyperbole’ in the name and signs of their Hyperbole Tribute Band activities.
The court determined that the mark was in use and did not revoke the protection. It was also claimed that the sign used by the defendants is deceptively similar: people may get the impression that members of the former group “Hyperbolė” also perform at concerts organized by the defendants.
Group file photo / Hyperbole Tribute Band
Vilnius Regional Court in 2020 March 31 partially prohibited defendants who formed Hyperbole Tribute Band (operating under the signs ‘Hyperbole Tribute Band’, ‘Hyperbole Acoustic’) from using the Hyperbole brand jointly and severally in concert and any other activity.
The defendants disagreed with this and went to the Lithuanian Court of Appeal, demanding that the registration of said trademark be revoked for lack of use. According to the appellants, the applicants have not participated in concert activities for more than 5 years. For their part, members of the Hyperbolė group claimed that the defendants were using the reputation of the Hyperbolė brand without their consent.
The members of the Hyperbolė group provided evidence in the file that their sound recordings had been commercialized: CDs since 1994 and vinyl records since 1980. They also provided evidence that Hyperbole songs can be listened to online through the commercial platform Spotify . The Lithuanian Association of Related Rights AGATA indicated that, according to available data, in 2014-2018. The recordings of the Hiperbolė group on the public air (Lithuanian radio, air TV, public commercial places) were sounded more than 170 thousand times.
Photo by A. Kubaitis / Hyperbole Tribute Band
In the opinion of the panel of judges of the Lithuanian Court of Appeal, these circumstances were sufficient to establish that the plaintiffs used their trademark for the primary purpose during the dispute.
“Applicants have registered the trademark in categories specifically related to musical activity, which is associated with the popularity and public recognition achieved by their musical group Hyperbole. Therefore, the Court of First Instance was correct in stating that, in the present case, the mere absence of a concerted activity when there is evidence that the mark is used for other activities related to the music of the Hyperbole group (distribution, commercial broadcasting , etc.) cannot lead to an objective conclusion that the trademark is not actually used and / or does not perform the essential function of the trademark, ”the appeal court stated.
The Lithuanian Court of Appeal also rejected the appellants’ allegations that one of the members of the Hyperbol they group had allowed them to use the mark. The panel of judges agreed with the plaintiffs’ argument that only the will of all of them could transfer the use of the mark to the defendants. It was not established in the case that all Hyperbol de brand owners had given their consent.
In the opinion of the panel of judges, the Court of First Instance, in view of the popularity of the Hyperbolė group and the fact that its works remain popular, reasonably held that those who knew and wished to hear from the former Hyperbolė group were most likely The activity of the concert and the dominant word “Hyperbole” highlighted in advertisements or posters will be associated with the popular group and its members. Given the similarity of the signs, such use of the sign gives the impression that it is the group “Hyperbole” that will perform the songs, so there is a possibility of misleading the public.
This decision of the Lithuanian Court of Appeal can be appealed on cassation.
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