Bizarre Ride Can’t Call Themselves Pharcyde

     (CN) – Two former members of the hip-hop group The Pharcyde cannot invoke that act’s name when they tour as Bizarre Ride, a federal judge ruled.
     Romye Robinson, Imani Wilcox, Trevant Hardson and Derrick Stewart, formed The Pharcyde in 1989 and entered into a recording contract with Delicious Vinyl Records (DVR) in 1992. Under the contract, DVR held the rights to all master recordings and reproductions of the group’s work.
     The group released its first album, “Bizarre Ride II the Pharcyde,” in November of that year to “great success, selling over 500,000 copies and attracting critical acclaim,” according to the ruling.
     DVR obtained a copyright for all of the sound recording and artwork for the album.
     Stewart, better known to fans as Fatlip, left the group in 1997, and Hardson, aka Slimkid3, did the same in 1999.
     Hardson later agreed in a settlement-dissociation agreement that he would not use the name The Pharcyde in any commercial manner except “to make public reference to himself as formerly of The Pharcyde,” according to the ruling.
     Hardson acknowledged in the agreement that Robinson and Wilcox were the exclusive owners of the name and had the exclusive right to use the Pharcyde name.
     In 2008, the four original group members embarked on a reunion tour. A tour agreement provided that Robinson and Wilcox still retained the exclusive right to the Pharcyde name, and that Hardson and Stewart reserved the right to refer to themselves as “formerly of the Pharcyde.” DVR was not part of that agreement.
     “Pursuant to these agreements, since at least 2004 up until 2012, plaintiffs had comprised the only group of individuals performing as ‘The Pharcyde,’ without the participation or involvement of Stewart and Hardson, save for a brief spell during the 2008 reunion tour,” the ruling states.
     With the 2012 re-release of The Pharcyde’s “Bizarre Ride” album, however, DVR organized and produced a live performance of the album in its entirety by Hardson, Stewart and the album’s original producers, J-Sw!ft and LA Jay. This group performed at the Roxy Theater in Los Angeles on May 23, 2012, as a new group called Bizarre Ride Live.
     An attorney for the other two original group members, Robinson and Wilcox, complained about how DVR and the new group were promoting themselves.
     The lawyer said DVR and the Roxy had every right to promote a special performance of “The Bizarre Ride II: The Pharcyde” by former members of The Pharcyde, but that the format of the show’s advertisements were “blatantly misleading.”
     After the show went off without a hitch, DVR and the new group took their act on an international tour.
     Though DVR claimed to have emphasized with tour promoters that the Bizarre Ride Live Tour was intended to “commemorate” the Bizarre Ride album, and was not a Pharcyde reunion tour, a number of the promotional materials nevertheless ended up referring to the performances as Pharcyde shows, or gave the impression that The Pharcyde would be performing.
     A DVR agent then informed promoters and booking agents that Robinson and Wilcox were threatening to sue. The notice said there was no legal basis for the claim since DVR’s show “is not being promoted as ‘The Pharcyde,'” but that DVR would still indemnify any third party against any claims arising out of their promotion of DVR’s show, according to the ruling.
     Robinson and Wilcox sent a cease-and-desist letter to Hardson’s agent in June 2012, claiming that the “Pharcyde European Tour” advertisement violated his settlement agreement.
     Hardson and Stewart have made numerous appearances as part of the tour in the U.S. and in Europe, making a profit of $5,000 to $10,000 per show. DVR has indicated that it “may” present additional performances in North America, Asia and South America later this year.
     Robinson and Wilcox sued Hardson, Stewart and DVR in June 2013.
     U.S. District Judge Christina Snyder initially denied the plaintiffs a restraining order but awarded them a preliminary injunction Thursday.
     Though the 1992 recording agreement with DVR authorizes an anniversary tour, Snyder said they should have the right to promote the re-release of the album only during the 20th anniversary year, which will end on Nov. 23, 2013.
     DVR can promote the anniversary tour but may be held liable for the actions of any third-party promoter that identifies The Pharcyde as the group that will be performing during the shows.
     “The evidence at present demonstrates that defendants continued with their tour for the better part of a year knowing that a significant number of venues and third-party promoters were infringing upon plaintiffs’ ‘Pharcyde’ mark,” Snyder wrote. “Third-party agents have represented that ‘The Pharcyde’ is the group that would be performing at a number of different venues in different cities, even though the group performing was in fact composed of Hardson and Stewart. Indeed, the potential for confusion appears to be ongoing. Since the original hearing on plaintiffs’ motion, the Roxy Theater issued a Twitter message proclaiming that ‘BizarreRide Live (AKA Pharcyde)’ would be performing on August 3, 2013. This message was immediately removed by the Roxy following plaintiffs’ complaint.”
     Because Hardson, Stewart and DVR admit to having “direct control and monitoring” over the third parties, and have agreed to indemnify some of them in the event of a lawsuit, Snyder found that Robinson and Wilcox would likely succeed in their claims of contributory trademark infringement and vicarious trademark infringement.
     Robinson and Wilcox argued that they have lost money because of the confusion over competing Pharcyde shows, and have lost good will with fans who purchased tickets to Bizarre Ride shows thinking they were buying tickets for the “real” Pharcyde.
     “Plaintiffs also offer declarations from their agent, as well as from European booking agents or promoters who testify to plaintiffs’ diminished reputation, decrease in ticket sales, and difficulty in booking future performances,” the ruling states.
     Snyder found that, because Robinson and Wilcox are “the undisputed owners of the ‘Pharcyde’ musical brand and business, the promotion of defendants as an alternative ‘Pharcyde’ likely threatens plaintiffs’ goodwill and reputation in the music community, in addition to their loss of market share. Taken as a whole, this is sufficient to support a finding of irreparable injury.”
     Therefore, a limited prohibitory injunction is appropriate. Snyder ordered the defendants to “ensure that their performances on the Bizarre Ride Live Tour are not promoted as ‘Pharcyde’ shows in a manner likely to cause consumer confusion. Based on the evidence adduced thus far, defendants’ actions in ensuring that third-parties comply with defendants’ own mandates for marketing their Bizarre Ride Live Tour have been insufficient.”

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