Punk Band Misfits Issues Trademark C&D To 'Punk Rock Flea Market,' Receives C&D From Flea Market In Return

from the I've-got-something-to-say/I-sent-a-C&D-today dept

Here’s a fun trademark tiff involving a “punk rock” flea market and the shambling, barely-reanimated corpse of a legendary band. [via Techdirt reader Cheyenne Hohman]

The Misfits were an influential punk rock band — one that dipped heavily into the murky waters of horror and featured lead singer Glenn Danzig, whose deep bellowing voice overshadowed his lifelong dream to grow up when he grew up. Over the years, the band has split and reformed multiple times when not lobbing the occasional lawsuit at each other. As it stands now, not a single original band member remains in the lineup, with bassist Jerry Only being the only long-running connection between various band mutations.

So, the Misfits who take the stage now are just basically a bunch of guys. But still as litigious as the people they replaced, apparently.

The Trenton Punk Rock Flea Market had some flyers made by a friend. Somehow, the font used drew the attention of the Misfits’ lawyer, who sent them a cease-and-desist. The letter, from Cyclopian Music, accused the flea market of using the “Misfits Horror Font” without permission (stating the usual trademark registrations and claims of “false representation”) and ordered them to knock it off by March 3rd.

Here’s the font in question, used in its “approved” form (note the little ® at the end).

And here’s the font used by long-running (but now defunct) horror movie mag, Monsters of Filmland, as pointed out by a commenter on the Trenton Punk Flea Market’s post.

Quite a bit of resemblance there, and considering the magazine began its print run long before the Misfits formed, there’s a bit of a question about who ripped off who — especially considering the band’s fascination with horror. That’s really neither here nor there, but it does go to show that the font isn’t so unique that it should only be considered property of the Misfits.

The flea market has agreed to stop using the font going forward, but it has issued some demands of its own to the Misfits’ label and legal representation. It’s the next best thing to setting the demand letter on fire and dropping it on Cyclopian Music’s most flammable spot of carpet. (Emphasis added to all the best parts.)

There are… a number of issues that we would like to address regarding the intellectual property of Cyclopian Music, Inc., which has the exclusive right to publicly perform and record as the MISFITS, now that we have been given a legal forum to do so. Our assertions are as follows:

1.) It is our position that we find it hard to grasp the concept that we have absconded with intellectual property when the MISFITS, as currently constituted, represent an entity of almost no inherent value.

2.) That the value of the MISFITS intellectual property has been irrevocably damaged by a failure of the members and employees of Cyclopian Music, Inc., to cease and desist performing and recording as the MISFITS when its current iteration bears almost no resemblance to the version of the MISFITS that the majority of its supporters are familiar with, and that these iterations represent a willful subversion of the rights of the consumer to remove any and all memory of these iterations from their collective transoms.

3.) That the failure of Cyclopian Music, Inc. to cease and desist performing and recording as the MISFITS is the driving force behind the devaluation of the intellectual property that they own and maintain, and that the total of that devaluation dwarfs any losses that have been or would have been experienced due to infringements of the their intellectual property.

4.) That ANY iteration of the MISFITS that does not employ the talents of one Glenn Allen Anzalone, also known as Glenn Danzig is a complete and utter misrepresentation of the MISFITS intellectual property and should be discontinued immediately.

The Trenton Punk Rock Flea Market protects and enforces the rights of punk rock music fans everywhere to enjoy the music of bands like the MISFITS, without being subjected to iterations of these bands that bear little to no resemblance to the originals. Subsequently, the Trenton Punk Rock Flea Markets will give Cyclopian Music, Inc. one hundred and thirty-eight (138) days to respond to the assertions made in this letter.

The letter is signed “Andres Esteban Todascasa, Esq.,” Trenton Punk Rock Flea Market’s “lead counsel.” Below is an undated file photo of Todacasas:

Does Cyclopian Music have the right to pursue perceived misuses of its “Misfits Horror Font?” Sure. Just as it has the exclusive right to throw random groups of musicians together and call them the “Misfits.” Should it have gone after a flea market for allegedly using “its” font for a post-flea market party at a local venue? Probably not. It’s not the sort of thing that might cause the USPTO to consider Cyclopian Music no longer worthy of its protections.

Sure, it managed to make the flea market both cease and desist, but in the process, its already-meagre reputation in the eyes of punk fans sunk even lower. And it gave an entity that does appear to have the respect of the fans Cyclopian would like to add to its revenue stream an opportunity to very publicly bash it for turning the Misfits into an unintentional satire of “milk it til it’s dry” labelnomics for the last decade.

Finally, here’s some classic Misfits, recorded in 1978 but not released until nearly two decades later.

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Companies: cyclopian music, trenton punk rock flea market

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Comments on “Punk Band Misfits Issues Trademark C&D To 'Punk Rock Flea Market,' Receives C&D From Flea Market In Return”

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trollificus (profile) says:

Not very “punk” at all. More “managed to get rights to the name of a dead band, now how can we milk a few $$$ from the corpse?”-ish.

It’s caveat emptor all the way down for bands you loved 30-50 years ago. Starting with the fact that even if the bands have the same personnel and have spent the intervening decades perfecting their craft…you still won’t be 19 again. Dammit.

Anonymous Coward says:

Re: Re:

…It’s caveat emptor all the way down for bands you loved 30-50 years ago. Starting with the fact that even if the bands have the same personnel…

That’s the key point and question right there: who owns the name of the band, and therefore the right to perform under that name. There are acts performing today that have had lineup changes for various reasons. Including a few acts that have zero original members.

Patrick Clark (profile) says:

The flea market has a somewhat valid point, that being said, the current iteration of the band(Misfits) is lacking most of any form of original members, except Jerry Olny which is a founding member and has the authority to use the name “Misfits” in any form desired, and it’s been hashed out in court to be this way. So, being disappointing as it may be to fans, if they are fans will be aware of the current line up/ iteration of said band and shouldn’t be disappointed, and had the choice of seeing the band in the current iteration. So no surprises. But the Misfits did rip off famous monsters of Gilliland magazine for the lettering!

Anonymous Coward says:

This has nothing to do with the “font”. Did you actually read the C&D? Basically, Jerry Only is a douche. They stole, um, “borrowed” their logo from a 1946 horror serial. What this is about is that Bobby Steele, former guitarist with the band, has a band playing at an after party from the flea market. Apparently some promo material for that made mention of him formerly being in the Misfits, and probably used their text logo to proclaim that. As long as it was clear that it wasn’t the actual (as if there’s such a thing anymore) Misfits playing, that sounds pretty much like fair use (since he WAS in the band), not misrepresentation. Jerry tried to screw Glenn Danzig (original founder of the band) when he registered the trademarks in the first place. Glenn sued him, but Glenn’s not the sharpest tool in the shed (he once traded the trademark to his record company name for 30 hours of free studio time), and the case was tossed because he never bothered to claim which terms of a 1994 agreement with Only were breached.

Deadshot says:

Not to mention how the misfits skull logo is just a ripoff of the Crimson ghost movie. They’re notorious for lifting graphics etc to make a dollar. They were a small punk band struggling on tour in the late 70’s early 80’s that went virtually unnoticed outside the scene until Metallica covered their songs and brought them to the masses. Now it’s the “only show” it’s time to give up guys, hang it up, you’re not scary anymore lol

Ryunosuke (profile) says:

Let me get this straight...

The MISFITS, by their very name, are not fit in as regular members of society, if they were, they wouldn’t be “Misfits”.

They are a punk rock band, by nature, is supposed to be non-conformant type of music.

They are demanding a group of non-conformists to … well… conform to society?

Does anyone else think that is odd?

Paul Mauled (profile) says:

Glad to see this got a writeup...

I’m glad this C&D got some coverage, and the response is GOLD. I loathe the current Gerald lead incarnation of the Misfits.

C&D or not, THE UNDEAD can’t wait to rock the Trenton Punk Rock Flea Market after party. Our new album THE MORGUE… THE MERRIER will be available there. It’s also available everywhere music can be found digitally, and LPs/CDs can be found at CDBaby and TheUndead.com

Zombiehorror (user link) says:

A bullshit ™ to begin with...

If Jerry/Cyclopian Music, Inc. followed trademark protocol then they never would have gotten the trademark in the first place. First of all it was part of the 1994 out of court settlement (between Glenn, Jerry, Doyle, Franché Coma and Robo) that no one would own the name/trademark; Glenn actually filed for the trademark in 1992 when the former members filed their lawsuit. He subsequently canceled the trademark after the out of court settlement was signed. Glenn should have been notified that Jerry/Cyclopian Music, Inc. was filing for the trademark but that wasn’t done until after the inefficient trademark office had already issued the trademark to Jerry/Cyclopian Music, Inc.

Glenn’s original Misfits trademark listed first use as 1976, First Use in Commerce as August 1977; whereas Jerry’s listed it as (first use/first use in commerce) April 19, 1994. How the trademark office missed the fact that The Misfits had been in use/commercial use since at least 1977 is beyond even the most intelligent of minds. The actual “horror font” logo had been in use since 1981; first used on the 3 Hits From Hell 7″ EP promo poster and on a Fiend Club insert within that release.

Glenn has been fighting the trademark battle since around 2005 and gotten nowhere with the morons that run the trademark office. If Jerry and the trademark office consider first use as April 19, 1994 then any member of The Misfits 77-83 should be grandfathered into the names use.

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