Monday, July 9, 2012

The Drifter Wars/Marshak vs. Sheppard

May 11, 1987 saw another action in US District Court
New York when Drifters member Rick Sheppard
moved for stay in favor of prior state court action
pending between him and Larry Marshak." Motion Denied"

The district Court, Milton Pollack, Senior District
Judge, held that no exceptional circumstances existed
that would warrant stay on abstention grounds,
particularly in view of dormancy of prior parallel
state action.

In the backround of this case the Plaintiff known as
Larry marshak at the time a manager of another
performing group known as The Drifters claimed to be
owner of a federally registered trademark for vocal
and instrumental music rendered by the group and
for the goodwill associated with the name The Drifters.

Marshak filed his suit on December 31 1986.
In his Amended Complaint he made three claims:
for infringement of his trademark in violation of the
Lanham Act,

The Lanham Act of 1946, also known as the Trademark Act (15 U.S.C.A. § 1051 et seq., ch. 540, 60 Stat. 427 [1988 & Supp. V 1993]), is a federal statute that regulates the use of Trademarks in commercial activity. Trademarks are distinctive pictures, words, and other symbols or devices used by businesses to identify their goods and services. The Lanham Act gives trademark users exclusive rights to their marks, thereby protecting the time and money invested in those marks. The act also serves to reduce consumer confusion in the identification of goods and services.

The Lanham Act was not the first federal legislation on trademarks, but it was the first comprehensive federal legislation. Before the Lanham Act, most of trademark law was regulated by a variety of state laws.

for unfair compettition; and for infringment under state law.

Marshak at the time made several request for declaratory and
injunctive relief, plus damages.

He requested a decree of the court that defendant Sheppard
had infringed upon his trademark and that they had falsely
promoted their entertainment services.

He further requested that the court would enjoin the
defendant and his associates from using the name The Drifters
or simular words to promote their own services. Lastly
he asked for treble damages and cost to be paid.

In an Amended answer to the Amended complaint, Sheppard
admits at the time he was engaged in the live entertainment
industry as a performer in a group known as Rick Sheppard
and The Drifters.

Sheppard interposes several affirmatives defenses to the
allegations by Marshak.

Sheppard claimed that Marshaks trademark was invalid in that
it was first obtained under false pretenses and then
granted "incontestability" status pursuant to U.S.C.1065
under further false pretenses.

He also asserted the defense of laches that he had allegedly
used th name "Rick Sheppard and the Drifters" openly and
continuously for over a period of ten years.

Lastly Sheppard asserted that the plaintiff, Marshak with
anothe filed two suits against him and another in New York State
Court in 1975 and 1978, over  essentially the same subject matter.

In all this Sheppard had asserted eight counter claims against
plainfiff marshak to include violations of antitrust, trademark
law, unfair competition, malicious prosecution, defamation,
inducement to breach of contract, and interference with business

(Corner Talk Report) for related info on the Drifters Legends:

The Drifters Legends Website:

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