The Hollywood Reporter explored what could have been the implications of producing and retailing unlicensed music memorabilia in the lawsuit filed by 80s super group Devo against an icon items retailer. After getting the case bumped up from the Indiana state court to a federal court on Friday, the two parties reportedly told the presiding judge that a settlement has been reached between them.
Devo, said THR, is a popular New Wave band with their breakout song titled "Whip It." The group is identifiable with their red headgear which are called "Energy Dome Hats." TV Store Online got sued by Devo and its official licensee Swag Merchandising Inc for selling unlicensed Energy Dome Hats.
There are little details that were made public about the lawsuit, but Devo claimed that TV Store Online violated trade dress and common law trademarks as the latter allegedly confused the band's rightful customers about the headgears' source of origin. Aside from the charges, Devo also claimed that TV Store Online violated the band's publicity rights.
THR said that the current legislation of publicity rights in Indiana is among the most generous in the country, allowing an individual or an entity to protect the name, voice, signature, photograph, gestures, mannerisms and distinctive appearance or a personality for commercial purposes.
The entertainment industry news site also said that although Devo was from Ohio, CMGWorldwide, who provides counsel to the 80s band, had made the lawsuit happen thanks to the statutory rights provision of the current Indiana publicity rights law. This means that the lawsuit could be legally pursued by Devo as the statute has no regard of the personality's domicile, residence or citizenship.
Interestingly, THR pointed out that although Devo in the lawsuit mentioned that it has a couple of federal trademark registrations in relation with entertainment services and sound and visual recordings, the lawsuit does not explain how the registrations specifically cover the Energy Dome Hats.
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