Karaoke Forums

Mr. Harrington has claimed that the newest angle for Phoenix entertainment partners to sue venues and KJ's will be service mark infringement.

In order to understand exactly what he's talking about requires that you understand exactly what a service mark is in the first place. Here is the definition as provided by the United States patent and trademark office:

In order to prevail on a lawsuit of this type, the service mark holder will need to prove – by a preponderance of the evidence – that either the venues and/or the general public were somehow "confused as to the origin of the karaoke services." And this would make it seem as though your karaoke show, or my karaoke show was somehow controlled, sponsored by, provided by, or approved of by the service mark holder.

At this point, I would have to agree with Mr. Harrington that the service mark – as used by his controlled licensees – is certainly valid. As he has repeated time and time again, and through his own contractual agreements with these licensees, his firm specifies the quality (and even bitrate) of the tracks they use as well as the "service they provide." These were rights specifically granted to PEP in their contractual agreements. Which means if you provide a pretty rotten show, complete with lousy sound and not very professional service, the service mark holder has the right to have you either correct the deficiencies or simply stop using the service mark.

But I believe the larger question is whether or not any KJ – who is not a controlled licensee – is confusing the public simply by playing sound choice tracks that display the logo. And this is also true for the venue who either may own their own equipment, and simply hire an outside KJ to run karaoke services for them on the weekends.

I certainly know for a fact that when I run the karaoke show, no one is confused as to the "origin of the services." No matter whose logo is displayed on a monitor. No one in the audience nor the venue, believes that I am somehow affiliated with, certified by, or otherwise controlled by any of the karaoke manufacturers whose logos show up on the screen. This includes Allhits, Star Disc, DK karaoke, SBI karaoke, Sunfly, etc.

My prediction is that this next round of lawsuits using service mark as the new "angle of attack" will probably fall flat. I don't believe that PEP will be able to convince a judge that although they have been selling karaoke products for years that included the logo to the general public and karaoke companies to use in their own "karaoke services" that now – after all these years – they have some sort of exclusive rights to the logo as a service mark with KJ's that are not contractually obligated.

As I mentioned above, this is not true with their controlled licensees. These licensees have given PEP the right to control their quality, as well as what can be subjectively deemed as "professional services." There have been many different versions of the contracts over the years. And if you have signed one, you may want to carefully read through it to see if it assigns these rights to the mark holder and whether or not you are classified as a "controlled licensee."

Ask your own attorney.... (I don't provide legal advice)

However, for the majority of KJ's and venues out there who have not signed a contract, I don't believe this is true.

I'm sure that Mr. Harrington will comment on why he believes his service mark infringement angle is something you and your venues should be concerned about.

So easy to just remove any and all service marks. Takes very little time at all. Outer Limits Karaoke has done it to loads of SC tracks... at least it sure looks that way.

Or can they try claiming the swipes, fonts and colors (trade dress) are part and parcel of the service marks, not just the name and logo?

There are two kinds of customers. There is the vast majority, probably 95%, who pay absolutely no attention to the manufacturers' names and logos going by on the screen, and have absolutely no idea what they mean. They don't even grasp the concept of there being any karaoke manufacturers. Quite a few don't even understand these are recreations of the songs by other people, not the artists' original recordings with the lead vocals taken away. By definition, this group of customers cannot be confused over who the KJ represents, because they are not even aware there is anyone to represent.

Then there's the second group, perhaps 5% of the customers, who are die-hard karaoke fanatics that pay strict attention to the brands because they have definite preferences for which versions they choose to sing. This kind of customer knows exactly what a manufacturer is, how the business works, and couldn't possibly be confused over who the KJ represents. The KJs represent themselves or they represent the venues they work for, period. This group already knows the tracks are a product, obtained by the KJ from any and all of the various manufacturers.

There is no third group. There is no one who cares about the name and logo on a track except those people who know full well what it means already, and they are not at all confused. They may tell you they follow a particular KJ because he or she "has a lot of Sound Choice", but never once has anyone said "I'm going to this show because it's run by Sound Choice, the KJ must work for them".

B-I-N-G-O! (Somebody give that penguin a yummy fish!)

And this is the key, no one has ever been confused about who runs a karaoke show.

Not so fast there buddy..

I was at an Acapulco trying to sing, and the fat Latina was twisting knobs,
(In full view of patrons)
and a bald Asian short guy was the man behind the curtain..
(I paid no attention)
So I was confused about who was the Major Domo..
and who was there to twist knobs.

Funny how the 95% who don't care corresponds with the 95% estimated number of pirate karaoke hosts. And the 5% who do care corresponds with the percentage of legal hosts, of course this is just rough estimates numbers may vary. So if most patrons don't care I don't see where PEP is going with the legal process? They have to get the courts on their side and the public opinion doesn't seem to support their position. At least the 9th Federal District Court has not been on PEP's side.

Yeah, so I use Audio-Technica Wireless Mics, Shure Wired Mic, Yamaha Tops, Yorkville Subs, Gig-Rig, Mackie Mixer, Alesis Compressors, DBX Driverack, QSC AMP, Ultimate Tripods, Tripp-Lite Rackmount Power Directors, BenQ LED Monitors, and Chavet LED Lighting...ALL LABELED CLEARLY with their own manufacturers NAME.

Which one of these companies do you think I perform a Karaoke SERVICE for?

[/quote]

While you may or may not be right about these facts, you are not answering the right question.

I will agree that "The KJ must work for Sound Choice" would be a way for this activity to be an infringement--and I might even be willing to concede that patrons are unlikely to conclude that the KJ works for us. However, "The KJ must work for Sound Choice" is not the only way this is an infringement.

Here is the text from 15 U.S.C. § 1125(a)(1):

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,
[...]
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

It's not just "this KJ is Sound Choice" or "this KJ works for Sound Choice." It's also "this KJ keeps showing us the Sound Choice logo--is he somehow affiliated or connected with that brand?" or "He's using the Sound Choice brand--his karaoke shows must be approved by the company that owns that brand."

I fail to grasp the implied connection.
I suspect the judge/s may feel the same.

A bit of stretch there partner.... and that's being kind.,

"Oh and look! The KJ is loading his equipment in a FORD truck... every single week.... Ford must approve of him using his truck for commercial purposes."

"Oh and look! The KJ is wearing a POLO shirt... every single week.... POLO must approve of him using it as a commercial uniform."

"Oh and look! The KJ is using a DELL laptop... every single week.... DELL must approve of him using it for commercial purposes."

I believe that PEP has the right to push around their own "controlled licensees" when it comes to "approval" in quality and services but I don't believe that PEP can make a viable argument against anyone else that purchased discs with no "quality or service restriction."

I prefer the HP business class laptops.
And they do approve, as they keep selling them to me..

Wow! Yoiu didn't lease it? No ongoing contract just to use it? So I guess the cold hard cash you handed them was all the contract they needed...

Yeah the service mark angle creating 'confusion' in the market place, even I don't see it. Again almost (no not all) every KJ in the world use or have used Sound Choice tracks. I have for 25 years - never once was I confused with being a part or any affiliation of Sound Choice in any manner whatsoever. Even when they (Sound Choice) sent me t-shirts which I wore (it's the equivalent to me wearing a Chevy t-shirt - I like the product), slips and golf pencils with their logos (which I used), no one ever thought I was part of Sound Choice. I even put on my website at one time (might still be there I haven't looked on that page in a while) that I 'use' these brands which included Sound Choice along with about 30 other brands.

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LIKE Lonman on Facebook - Lonman Productions Karaoke & my main site via my profile!

Partner?

Intriguing choice of word...

heh heh.

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Never the same show twice!

i just can't buy "anyone who plays SC tracks is confusing people into believing they are sponsored or endorsed by SC".

I wear Justin Boots every day, it doesn't show "affiliation, connection, or association of such person with me, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person"

i Wear Wrangler Jeans every day, it Doesn't show "affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person"

I use GTD Mics every day, it doesn't show "affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person"

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Paradigm Karaoke, The New Standard.......Shift Happens

While you may or may not be right about these facts, you are not answering the right question.

I will agree that "The KJ must work for Sound Choice" would be a way for this activity to be an infringement--and I might even be willing to concede that patrons are unlikely to conclude that the KJ works for us. However, "The KJ must work for Sound Choice" is not the only way this is an infringement.

Here is the text from 15 U.S.C. § 1125(a)(1):

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,
[...]
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

It's not just "this KJ is Sound Choice" or "this KJ works for Sound Choice." It's also "this KJ keeps showing us the Sound Choice logo--is he somehow affiliated or connected with that brand?" or "He's using the Sound Choice brand--his karaoke shows must be approved by the company that owns that brand."[/quote]


Let's face it Jim if you couldn't make the trademark infringement fly, because there is no confusion in the market place, I don't see where you are going to prove confusion on the patrons part. I feel most patrons are smart enough to figure out that SC is one of the many brands a host uses in an evening. They are not going to think that the host is in anyway connected with SC or PEP for that matter. If you can't get the court to buy this your done, unless you have something else in your legal bag of tricks.

Jim relies on fear alone. Fear leads to settlements. As long as there are some people out there that don't do their research; there will be people who are afraid of Jim's threats. Those people, the low lying fruit, are Jim's future pay checks.

If I put the Sound Choice logo on my business card, request slips, website and other promotional items, I could understand a service mark lawsuit because someone might really be going out of their way to "act the role".

But playing a SC track here and there... no. No one would confuse me with working for PEP. Not because I play SC tracks, but because I use logos from several companies at my gigs. Whereas someone who might be from SC might use a greater ratio of tracks from SC.

I hope no one wears a SC t-shirt to a gig.... PEP might see that as a uniform!!

If those things were the primary focus of your services, and they were fakes, can you see why the owners of those marks might have a problem with your use?

I mean, I assume you're not using fake GTD mics. If you're using real ones, there's no false association.