Inside the federal courthouse in Nashville, things are moving like molasses -- but up in Seattle, also in the federal courts, the Real Lady A is making progress toward getting the whole dispute heard there -- on a fairly expedited basis.
To that end, Cooley has filed an overnight motion in Seattle seeking to get rolling, straight away -- as Ms. White has every right to bring a suit there, and the country act's contacts with that venue are indisputable, haveing played decade's worth or more of tour dates in and around the state -- promoting what it claims are its brands. Here's a bit, but do go read it all:
. . .For nearly thirty years, Ms. White, an independent artist, has performed music under the trademark and stage name LADY A. Id. ¶ 2. Throughout her career as a performing artist, Ms. White has been based out of the Seattle, Washington area. Id. ¶ 3. After the death of George Floyd on May 25, 2020, and the protests that followed, Lady Antebellum announced on June 11, 2020 that it would no longer perform as “Lady Antebellum.” Id. ¶ 5. Thereafter, they would perform as “Lady A.” Id. Ms. White learned of Lady Antebellum’s name change from texts from friends. Id. ¶ 6. Ms. White, as an independent artist of limited means, and having no experience with trademark disputes, she retained pro bono counsel in Memphis, Tennessee based on a referral from a friend. . . .
The next day, Ms. White was contacted by Lady Antebellum’s management team, who invited her to participate in a call with Lady Antebellum’s counsel and Defendant Hillary Scott. Id. ¶ 9. This call led to a further invitation from Lady Antebellum for Ms. White to attend a June 15, 2020 Zoom meeting with the band to discuss her concerns about their use of the LADY A mark. Id. ¶ 10. Although Ms. White agreed to explore the possibility of coexistence, she remained deeply concerned that use of the LADY A name, in particular by a large, well-known and well financed group like Lady Antebellum, would overwhelm and erase the brand identity that she had developed over decades of work. . . .
Lady Antebellum now invokes the “first-to-file” rule as grounds for the Court to dismiss, transfer, or stay Ms. White’s substantive trademark infringement action. But the “first-to-file” rule should not be applied when, as is the case here, the first-filed action is an improper anticipatory lawsuit made for the purpose of depriving the natural plaintiff of her choice of forum. As Lady Antebellum acknowledges, Ms. White has moved to dismiss the Tennessee Action for lack of personal jurisdiction and on the ground that it is an improper anticipatory lawsuit (the “Motion to Dismiss”). If Ms. White is successful on these arguments, which is likely, then there effectively is no first-filed action to justify dismissal. Under these circumstances, the “jurisdictional uncertainty” of the first-file case renders dismissal on first-to-file grounds improper. See Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628-29 (9th Cir. 1991). . . .
In addition, equity militates against staying this proceeding pending a determination of the Motion to Dismiss. The Middle District of Tennessee has already stayed substantive discovery in that action until a decision is reached on the Motion to Dismiss. If this action is also stayed, Ms. White’s claims will effectively be placed in hibernation while the ongoing harm caused by Lady Antebellum’s use of the LADY A mark continues unabated. . . .
I know I said this would not be about the election, but I simply must say -- the entire country group approach here. . . is just peak Trumpian brand 2020 -- pretend to be some faux-Abe Lincoln (seeking a supposed understanding after Mr. Floyd's murder), while they're actually the proprieter of. . . Candyland (ref. "Django Unchained" -- by filing a pre-emptive suit, down south. on their home turf).
To my eyes at least, the country artists never really acted in good faith here -- it was all a ruse to manufacture enough "contacts" with Tennessee, to allow Ms. White to be sued by them, there -- in the guise of a negotiation they never intended to make good on. We shall see. Onward, to a new tomorrow. . . . slightly grinning, in spite of myself.
नमस्ते
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