(CN) – A music promoter violated a court order barring him from marketing music by The Drifters when his business associates and family members began promoting the doo-wop group through successor companies, the 3rd Circuit ruled.
Promoter Larry Marshak sued Faye Treadwell, widow of the late music executive George Treadwell, for trademark infringement in the late 1990s, claiming she was using The Drifters name without his permission. He had registered the mark in 1978.
Treadwell counterclaimed, accusing Marshak of obtaining the mark by fraud.
Though the jury issued a split verdict, a federal judge in New Jersey sided with Treadwell.
“Judge Politan enjoined Marshak and his company [RCI Management] from marketing The Drifters anywhere – not On Broadway, not Up On the Roof, and not Under the Boardwalk,” wrote Judge Fuentes of the 3rd Circuit, punning on the names of popular Drifters’ tunes.
The injunction effectively shut down The Drifters’ nightly performances at the Sahara Hotel and Casino with The Platters and The Coasters. All three groups were provided by DCPM, a company started in the late 1990s by Marshak’s wife and sister-in-law after they agreed to dissolve RCI.
Barry Singer, a longtime business associate of Marshak, and RCI’s former attorney, Lowell Davis, struck a deal with Odessa Hobbs, widow of former Drifter Elsbeary Hobbs, for the rights to The Elsbeary Hobbs Drifters. By early 2002, the Sahara show had been resurrected, with The Platters and The Coaster playing alongside The Elsbeary Hobbs Drifters.
The district court held Marshak and his associates in contempt for continuing to infringe The Drifters mark, despite the injunction.
The Philadelphia-based federal appeals court agreed that the injunction could be enforced against DCPM, Cal-Cap and parties other than Marshak and RCI.
DCPM was formed to replace RCI and replicate its work, was co-owned by past employees of Marshak and RCI, and was even run out of Marshak’s basement, Judge Fuentes noted. “Thus, after a year’s interlude, The Drifters were once again being marketed out of the same basement office by the same people.”
The court upheld the contempt findings against Marshak; his wife, Andrea Marshak; sister-in-law Paula Marshak; former RCI accountant Charles Mehlich; former RCI attorney Lowell Davis; business associate Barry Singer; Singer Management; DCPM; and Cal-Cap.
However, the 3rd Circuit reversed the contempt finding against former RCI employee Dave Revels, who was held in contempt based on his testimony, but was deliberately excluded from Treadwell’s motion.
“As a result,” Fuentes wrote, “Revels never obtained counsel or received a separate hearing.”