A recent case in the Court of Appeals for the Third Circuit analyzed New Jersey's Deceptive Practices in Musical Performances Statute (“Truth in Music Act”). In that case, Singer Management Consultants, Inc. v. Anne Milgram, Attorney General of the State of New Jersey, --- F.3d ----, 2010 WL 3037394 (C.A.3 (N.J.), the “[a]lleged holders of exclusive rights to unregistered marks under which they managed and promoted singing groups brought suit challenging the validity of enforcement of Truth in Music Act, and [sought] a temporary restraining order and preliminary and permanent injunctive relief.” Id. at 1. The appeals court held that the plaintiffs were entitled to have their attorneys fees reimbursed under the Statute.
The facts of the case were straightforward. “Live Gold manages and promotes the music recording and performing groups known as ‘The Platters’ and ‘The Cornell Gunter Coasters,’ pursuant to licenses of unregistered trademarks by the same names. In August 2007, the State learned that Live Gold had scheduled a two-week concert of the Platters and Coasters groups at the Hilton Hotel in Atlantic City, to begin on August 18. The State contacted Live Gold and informed it that its use of the trademarks “The Platters” and “The Cornell Gunter Coasters” might violate the Truth in Music Act, which provides:
A person shall not advertise or conduct a live musical performance or production through the use of an affiliation, connection or association between the performing group and the recording group unless:
(a) The performing group is the authorized registrant and owner of a federal service mark for the group registered in the United States Patent and Trademark Office; or
(b) At least one member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation of the group; or
(c) The live musical performance or production is identified in all advertising and promotion as a salute or tribute; or
(d) The advertising does not relate to a live musical performance or production taking place in this State; or
*2 (e) The performance or production is expressly authorized by the recording group.
N.J. Stat. Ann. § 2A:32B-2.
Live Gold responded by providing the State with evidence of its ownership of common law unregistered trademarks in the groups' names, asserting that the unregistered trademarks should be considered “express authorizations” under subsection (e) of the Truth in Music Act.”
Id. at 1-2
At the conclusion of the hearing on the injunction, the State conceded that Live Gold was essentially correct. Therefore, the Court concluded that it was clear that “in the future the State will not treat holders of unregistered trade marks differently than it treats holders of registered trademarks.” Id. at 15.
Live Gold then sought reimbursement of its attorneys fees “[p]ursuant to 42 U.S.C.A. § 1988(b), [under which] courts “may allow the prevailing party ... a reasonable attorney's fee as part of the costs” in civil rights cases.” Id. at 5. The lower Court refused to award fees, but on appeal, the Court awarded the fee reimbursement on the basis that the plaintiff had effectively prevailed in the case.
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