Jury Balks At Trademark Claim Against Ex-Member Of Rock Group Boston

from the these-are-the-facts dept

Mon, Nov 7th 2016 11:23pm — Timothy Geigner

When you cover enough stories about trademark disputes, you sometimes are amazed at just how petty these types of things can get. I imagine for those who cover the kinds of arguments and disputes that happen within musical acts, it can be a similar experience. But when you intersect petty band members and a petty trademark dispute, that's when your faith in humanity is truly put to the test.

Serving as an example of this is your one uncle's favorite band, Boston. It seems that a one-time member of the band, guitarist Barry Goudreau, has since continued his musical career with other acts. Those acts have occasionally promoted themselves as including a former member of Boston. For this, the band's frontman, Tom Scholz, filed a trademark suit against Goudreau.

Goudreau has referred to himself as “Barry Goudreau from Boston,” “Barry Goudreau of the Multi-Platinum Group Boston,” and, in an advertisement for an appearance last summer with James Montgomery, “Barry Goudreau Lead Guitarist Rock Legend from the Band Boston.”

Scholz's suit goes to great lengths to minimize the role Goudreau had in the band, which amounted to being the lead guitarist on their first two albums. Which, whatever, as far as trademark law goes. It then goes on to note that there was an agreement in which Goudreau would have no right to the "Boston" name. And perhaps, depending on how formal the nature of this agreement was, there might be a discussion to be had over contract violations. Except that this is a trademark dispute, so one wonders just how formal that agreement was.

Regardless, the suit went before a jury which, thankfully, found its claims to be of little merit.

Barry Goudreau, onetime guitarist for Boston, did not infringe on the band’s trademark by billing himself as a former member of Boston after leaving the group. That’s the verdict in a lawsuit brought against Goudreau by Tom Scholz, leader and principal songwriter of Boston in US District Court.

Likely because even for those not familiar with the minutiae of trademark law, it strains the mind to accept that issuing a factual statement should somehow violate intellectual property rights. Goudreau was a member of the band. Promoting him with that fact on material for another act has a roughly zero chance of confusing anyone. Still, Scholz's follow up to the verdict highlights the pervasive misunderstanding that caused him to bring the suit to begin with.

“Despite the jury’s verdict on our trademark violation claim, today’s outcome was satisfactory because it reinforces a clear message for musicians and artists across the nation,” Scholz said in a statement. “Trademark law exists not just to protect the rights of those who create, but to preserve the legacy and value of their art.”

Note the complete absence of any reference to the actual purpose of trademark law: protecting the public from product confusion. If Scholz had instead viewed his former bandmate's actions through that lens, instead of one in which the law serves only creators, as though it were copyright, he would have known better than to bring the suit to begin with.

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Filed Under: barry goudreau, boston, tom scholz, trademark

14 Comments

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Anonymous Coward, 8 Nov 2016 @ 12:15am

Barry Goudreau added a lot to the value of the band's art. Music from the first 2 albums, mostly the first album, are the only songs you hear from them anywhere. Heard one on the radio today from the first album.
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Mr Big Content, 8 Nov 2016 @ 12:26am

If Facts Cannot Be Owned, Where Would The Incentive Come From To Create More Of Them?
We all know teh World is running out of resources. Thats a fact, and facts are resources, too. Therefore, were running out of facts as well! And thats another fact.

So you see, their are only so many facts. We need a robust, thriving fact-creation industry!! Our new President Trump will only be able to do so much by himself. Thats why we must have stronger laws to encourage teh ownership of more facts. And thats why rigged kangaroo-court cases like these must be REJECTED BY ALL LAW-ABIDING CITIZENS!!!
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Boston Bunkie, 8 Nov 2016 @ 5:11am

Re:
While I do side with Barry Goudreau on this, you are wrong in giving credit to him for adding value to the band's songs, especially the first album. Tom Scholz wrote and recorded almost all of the music himself. He didn't sing or play drums, but played almost all of the guitar, bass and organ parts himself. He is a control freak to say it lightly. As I understand it, the band wasn't even assembled yet during most of the recording. The second album was a little more of a group effort, but still completely dominated by Scholz.
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Anonymous Coward, 8 Nov 2016 @ 6:09am

Clear Message
Per Tom Scholz, the jury's verdict "reinforces a clear message."

**Boston's Tom Scholz is an ignorant asshat?**
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JoeCool (profile), 8 Nov 2016 @ 8:38am

Re: Re:
Yeah, control freak is putting it mildly. After he got enough money, he made a home studio in his basement so that he could control every aspect of the music from that point on. He even went from using off the shelf parts to designing his own, which has ironically made him a LOT more money than the music ever did. This lawsuit is but one of many he's fought, putting legal control in the list of controls he's anal about.
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yankinwaoz (profile), 8 Nov 2016 @ 8:38am

"...Trademark law exists not just to protect the rights of those who create, but to preserve the legacy and value of their art..."

Wait... isn't that Copyright law?
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JoeCool (profile), 8 Nov 2016 @ 8:41am

Re: Clear Message
He's primarily an engineer. A VERY good one who's designed a lot of music-related equipment that changed the sound of music over the last couple generations. As to law - well, he's been in lawsuits now since the second album, so I imagine he feels he knows more by now than your average lawyer. :)
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Thad, 8 Nov 2016 @ 9:06am

Re:
I'd say it's both. Trademarks are a defense (for both owners and consumers) against cheap knockoffs; I suppose Scholz believes (incorrectly) that this is one of those.
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Thad, 8 Nov 2016 @ 9:09am

Dweezil Zappa has alleged that the Zappa Family Trust (now controlled by his brother Ahmet and sister Diva) have filed for a trademark on "Zappa" and intend to prevent him from touring under his own name.

I don't have any independent corroboration on that beyond Dweezil's saying so, but it's certainly in keeping with their previous dispute over the "Zappa Plays Zappa" name.

This stuff's getting really silly.
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Oninoshiko (profile), 8 Nov 2016 @ 10:13am

Re: Re: Clear Message
Yet he still wasted his money filing this frivolous suit.

Frankly, Goudreau should have been awarded attorney's fees.
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Anonymous Coward, 8 Nov 2016 @ 10:54am

Loved their music in high school, and still listen on occasion as I have what I believe to be all of their studio works. After losing a fellow band member you would think the guys would mellow out. Scholz can take a flying shit, and what goes around comes around, good to know he can still afford a lawyer.
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GMacGuffin (profile), 8 Nov 2016 @ 12:32pm

"Scholz's suit goes to great lengths to minimize the role Goudreau had in the band, which amounted to being the lead guitarist on their first two albums."

That's a funny way to minimize. I was a teen when Boston came out. I honestly didn't know there were more than two albums.
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Atkray (profile), 8 Nov 2016 @ 7:54pm

Grew up listening to Boston. Loved them. Went to 2 concerts.
Then the band hired for our Senior class all-niter got tired of a group of us complaining about all the Disco music they were playing.
They took about 2 minutes re-tuning their instruments and then went straight into Foreplay/Long Time.

Played it better than Boston did.

I haven't looked back.
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Wendy Cockcroft (profile), 9 Nov 2016 @ 7:32am

Re: If Facts Cannot Be Owned, Where Would The Incentive Come From To Create More Of Them?
LOL! You made me spit my coffee out, BC!
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