No. 12

May 01, 2014

For those who caught the Arsenio Hall show on April 21st, you might have noticed something disturbing. A group of musicians appeared and performed using the band name Death. Anyone familiar with the legendary band Death would immediately have noticed this wasn't that band, instead being a group of African-American musicians performing some form of punk-metal. According to Arensio, this band calling themselves Death were releasing a new CD to stores the following day.

My initial reaction was that of shock, likely the same reaction of anyone else familiar with the band Death who viewed this appearance. Questions were immediately raised concerning trademark infringement and whether Arensio Hall was even aware of the band Death, who hold a registered trademark for that name, having delivered seven albums on labels like Combat and Relapse since the 1980's.

Death was an American metal band from Orlando, Florida, founded in 1983 by the driving force of its founder Chuck Schuldiner, considered a pioneering force in death metal. Death are most certainly one of the most influential bands in all of metal. They recorded the Mutilation demo, which led to a deal with Combat Records, owned by Important Distribution which later becoming Relativity, and subsequently Sony, enabling them to record their first album. Their 1987 debut, Scream Bloody Gore, has been widely regarded as the first record in the death metal genre and music biographers have referred to Schuldiner as "the Father of Death Metal" and "readily acknowledged as the true founder of the U.S. death metal scene".

Schuldiner and his band Death went on to record the albums Leprosy (1988), Spiritual Healing (1990), Human (1991) Individual Thought Patterns (1993), Symbolic (1995), and The Sound of Perseverance (1998). One of my favorite songs and one of their most memorable was "The Philosopher". The band ceased to exist after Schuldiner died of brain cancer in December 2001, but the band remains an enduring metal brand. As of 2013, Death had sold over 3 million albums worldwide with over 1,000,000 copies sold by June 2013 in the United States, making them the top-selling death metal band worldwide.

This other band calling themselves Death, style themselves "proto-punk". They were a garage band formed in Detroit, Michigan, in 1971 by brothers Bobby (bass, vocals), David (guitar), and Dannis (drums) Hackney. The black trio started out as an R&B band but claim to have switched to rock after being inspired by The Who.and Alice Cooper. The brothers practiced and recorded early demos in a room in the family home and performed their earliest gigs from their garage. Originally calling themselves Rock Fire Funk Express, guitarist David convinced his brothers to change the name of the band to Death. "His concept was spinning death from the negative to the positive. It was a hard sell," Bobby Hackney recalled.

The group recorded seven songs at Detroit's United Sound Studios with engineer Jim Vitti in 1974. According to the Hackney family, Columbia Records president Clive Davis funded the recording sessions, but implored the band to change its name to something more


commercially palatable than Death. When the Hackneys refused, Davis ceased his support. The following year they self-released (on their label Tryangle) a single taken from the sessions: "Politicians in My Eyes" b/w "Keep on Knocking," in a run of just 500 copies. Music critic Peter Margasak retrospectively wrote that David "pushed the group in a hard-rock direction that presaged punk, and while this certainly didnít help them find a following in the mid-70s, today it makes them look like visionaries.". The band broke up by 1977 but reformed in 2009 when the Drag City label released their 70s demos for the first time. An independent documentary film about the band titled A Band Called Death, directed by Jeff Howlett and Mark Covino, was released in 2012.

While there will be those who believe that this "proto-punk" band calling themselves Death should have the right to use of that name because they were first to create it, as early as 1974, this is not how the trademark laws are written. A trademark is not secured by one's creation like a copyright, but instead through the commercial use of the name specific to geographic regions. Here we have a case of a bands ignorance in understanding these laws and the typical modern mentality in this industry of bands to use a name without first securing it through comprehensive name searches and commercial establishment. To even be eligible to file for an offical trademark of a name, one has to a) prove comprehensive searches have been done to ensure there is no conflict with another use; and b) have the name on products distributed commercially through retail in every country the name is used in business; and c) have continued use of the name within a five year period. In the United States, this involves use and distribution in more than half the states and the United States Patent and Traemark Office generally requires at least two commerical products in evidence of this. First and foremost, the filing of an official trademark is published and there is a window of only several years in which that registration can be opposed by someone else. The person who first files first, unopposed, always has the first right of use.

The facts in this matter are that this "proto-punk" band, were nothing more than a garage band with rights to some songs by copyright. The commercial use of the band name Death went only as far as their self-release of 500 copies, which likely only coveredthe geographical region of their surrounding home state. The band never filed for an official trademark, the band became defunct, the name went unused for a period of more than five years, and this band never opposed the later use of the name Death by Chuck Schuldiner and his "death-metal" band. According to the United States Patent and Trademark Office, the name "Death", is an official trademark held by Schuldiner's company and the Relapse label. The trademark is listed as "active" and the renewal for tha trademark was filed as recent as March 22, 2013 serial # 85883636 as "Entertainment in the nature of live performances by a musical band; Entertainment services in the nature of live musical performances; Entertainment, namely, live performances by a musical band." Despite the fact that Schuldiner passed away and his band became defunct, commercial use of the name Death has continued, they still sell albums, and its a brand established worldwide. Relapse, the label of the 'death-metal" band has just recently re-issued releases of their previous albums in April 2014.

What a travesty to the real band Death and Chuck Schuldiner's memory for Arsenio Hall and FoxTV to air this other band calling themselves Death. They should be ashamed of themselves, how unprofessional ! By airing this group infringing on the name Death, they have opened themesleves up to the risk of a very costly lawsuit, one which they won't stand to win. The name Death, the brand established by the "death-metal" band is easily found throughout the internet, so claiming ignorance isn't going to fly. I hate to say it but trying to be the garage band that steals their brand, is nothing less than ghetto. Find another band name, here's a good one if not already taken .... Black Death.

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