LAS VEGAS (CN) - The Cavern Club, the basement watering hole in Liverpool where the Beatles got their start, claims the Hard Rock Café obtained a U.S. trademark on the name through fraud. It wants the Hard Rock's "Cavern Club" trademark canceled as fraudulent, deceptive and unfair.
The Cavern Club says it owns its trademark in Europe, Australia, Hong Kong, Brazil and Canada. It seeks de novo review and cancellation of a Sept. 29 decision by the U.S. Trademark Trial and Appeal Board that gave Hard Rock International the rights to use the name in U.S. restaurants.
The Hard Rock restaurant chain was sold to the Seminole Tribe of Florida in 2006. It operates 150 outlets in 53 countries.
The Cavern Club, which served as a bomb shelter during World War II, booked John Lennon's band, the Quarrymen, for a gig in August 1957. Paul McCartney joined the Quarrymen for a January 1958 show there, and George Harrison made the scene in January 1961.
Under a new name, The Beatles, the group played the Cavern Club more than 300 times from 1961 to 1963, according to the complaint. The Rolling Stones, the Yardbirds, the Who and the Kinks also played at the Cavern Club in their early days. For English rock and rollers, the club is little short of hallowed ground.
The Cavern Club claims the Hard Rock obtained its U.S. trademark through fraud: "In defendant's April 24, 1994 application, defendant's corporate representative provided a sworn statement that 'he 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.'
"This statement was false and was made with knowledge it was false with the intent to deceive the USPTO and induce it to grant the registration to the mark Cavern Club to defendant."
The Cavern Club points out that the first Hard Rock Café in London did not open until 1971. The Cavern Club opened in January 1957.
The Cavern Club claims: "The Trademark Trial and Appeal Board made an erroneous conclusion that the plaintiff did not meet its burden of demonstrating that the defendant's Cavern Club falsely suggests a connection with plaintiff pursuant to 15 USC § 1052(a).
"The TTAB decision of September 29, 2011 should be reversed and vacated, and an order should be entered directing the USPTO to cancel defendant's U.S. Trademark No. 2324683."
The club adds: "Because of the fame and recognition of plaintiff and The Cavern Club mark amongst rock 'n' roll fans for entertainment services, defendant is obtaining by its conduct the benefit of an association to which it is not entitled."
The Cavern Club wants the courts to cancel the Hard Rock's trademark, and enjoin it from using the name in any of its restaurants.
It is represented by Mark Borghese of Las Vegas and Paul Rapp of Housatonic, Mass.
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