Friday, October 13, 2006

Sid Terror Punked by Bobby Steele in "THE UNDEAD" TTAB Priority Clash

In a semi-lively priority battle, the TTAB sustained a Section 2(d) opposition brought by Robert Kaufhold a/k/a Bobby Steele against Robert P. Yeomans a/k/a Sid Terror, regarding the mark THE UNDEAD for "entertainment namely, live performances by a musical band." Kaufhold v. Yeomans, Opposition No. 91160771 (September 26, 2006) [not citable].


The Board had no difficulty in finding likelihood of confusion, since both parties claimed use of the same mark, THE UNDEAD, for identical services (punk rock bands). The question was: who was undead first?

In his application, Yeomans stated a first use date in 1976 for his version of THE UNDEAD, but he failed to submit any evidence whatsoever and so was seemingly stuck with the application filing date (July 30, 2002) as his constructive first use date.

Opposer Kaufhold testified that he chose the name THE UNDEAD for a punk rock band in 1980 and started playing "live" shows under that name in late January 1981 at the A7 club in New York City. The Board concluded that Kaufhold had indeed established a first use date of January 30, 1981.

Normally, the Board would have concluded that Opposer had priority. But the Board hesitated because Opposer's own testimony raised the issue of whether Opposer "has established an earlier prior use date for applicant." [Emphasis in original].

Q. When did you first hear of the applicant?

A. When I first heard of him was when we played with the Dead Kennedys. And after the show --

Q. Let me just clarify that. That was sometime in mid-'81, late '81?

A. Right, that was - yeah, that was mid-'81.

Q. Okay.

A. And after the show, we were hanging our with the Dead Kennedys in the dressing room, and we were kind of like, you know, just having a conversation. And Jello Biafra [lead singer of the Dead Kennedys] just, like - just, like, mentioned that, you know - you know, there's a band - there's a band in San Francisco called The Undead. And did you know that?

I was, like, no. He said, you know, I wouldn't expect you to, you know. And that was about the extend of it, was just, like, you know, there's this other band out there, you know.

Q. So, before Jello Biafra told [you] about him, you hadn't heard of him?

A. No.

The Board incisively ruled that Opposer's own testimony did not allow it "to draw any conclusions that undermine opposer's claim of priority."

Finally, the Board noted that, "from a trademark perspective," the fact that the two bands had played at least one concert together was "certainly perplexing." Blatantly venturing into obiter dictum, the Board asserted that had Applicant raised the issues of consent or acquiescence, the Board would have rejected them for various reasons. But he didn't, so they didn't have to.


Declaring Applicant's THE UNDEAD application dead, the Board sustained the opposition on the ground of likelihood of confusion.

TTABlog comment: I think there might also be a descriptiveness issue here. I mean, if the band is giving "live" musical performance, aren't the performers necessarily "undead?"

Text Copyright John L. Welch 2006.

6 Comments:

At 9:09 PM, Anonymous Anonymous said...

Actually it was more like Bobby Steele got punked by Sid Terror. Sid had actually changed the band name to SID TERROR'S UNDEAD well over a decade before. He was re-releasing an album of some very early recordings from when the band was still called THE UNDEAD and only using the original name for that one release. Meanwhile Bobby Steele spent untold thousands defending the name and bitching about it all over the internet, but Sid Terror spent nothing and got a lot of publicity for his release. He did exactly what he set out to do. ...Kept an idiot in litigation and spending money, got tons of almost free publicity, then released the album anyway. So WHO really got punked? Bobby Steele did. Brilliantly played, Sid!

 
At 9:19 AM, Anonymous Anonymous said...

Sid Terror is a pompous, fill of himself, angry, sad little never-was.

 
At 10:12 AM, Anonymous Anonymous said...

Sid gets his own tribute song!

https://youtu.be/5rb_YBV3JIU

 
At 5:23 AM, Anonymous Anonymous said...

Considering the name THE UNDEAD was lifted from a fictional band in the film PHANTOM OF THE PARADISE, neither party should be whining over this ...

 
At 6:10 AM, Anonymous Anonymous said...

Terror’s band had a record release party for their third or fourth record the same night Steal’s band were playing their very first show. That makes it pretty indisputable that if you like Terror or not, Terror was first. The aptly initialed B.S. is the bullshitter here, but I guess he’s such a pathetic bottom feeder all he can do is trade on the names of either bands he was kicked out of or are more talented than his own.

 
At 12:30 PM, Anonymous Anonymous said...

Come on, Robert. Everyone knows this is you posting anonymously. Anyone who has ever interacted with you knows that you're a total narcissist, & if anyone says a negative word about you, you HAVE to defend yourself.. but never under your own name. You can't even do it on such a small publication. You're no stranger to using pseudonyms and the fact that you posted anonymously (sounding like a rabid fangirl) is just pathetic. You've pulled bs like this for years & you're still doing it. You may have fooled people in the past to stand up for your foolishness, but when you continue the exact same pattern, people see right through you. I'd have so much more respect if you'd at least use your name when posting about how amazing you believe you are. You're old enough & should be mature enough to put this damn near half century old childish drama to bed. Grow up.

 

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