By: Joseph R. Englander
In the case EARTH WIND & FIRE IP, LLC, v. SUBSTANTIAL MUSIC GROUP LLC, (1:23-cv-20884-FAM) Judge Moreno on March 4, 2024 granted summary judgment on liability for trademark infringement in favor of the EARTH WIND & FIRE trademark holder and band and against Defendants using the mark "Earth Wind & Fire Legacy Reunion" and "The Legacy Reunion of Earth, Wind & Fire". The Defendants also used Plaintiff's "iconic" phoenix logo.
The court reviewed the likelihood of confusion factors in the 11th Circuit's Frehling test, and noted that "the two critical factors of mark strength and actual confusion" weighed in favor of the Plaintiff. Mark strength was bolstered by the fact that cited third-party users of the mark used the term TRIBUTE to avoid confusion with the Plaintiff's band. Other bands may consider using TRIBUTE in their names and advertisements where appropriate to reduce potential liability.
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