Creative Arts by Calloway v. Brooks

Intellectual Property

New York Law Journal


District Judge Cathy Seibel

Creative Arts by Calloway was founded in 2000 by late jazz musician Cab Calloway's widow and daughters. Musician Brooks—Calloway's eldest grandson, who performed with Calloway from 1978 to 1993—founded the tribute act Cab Calloway Orchestra in 1998. That name has been used continuously in live performances and the sale of CDs and videotapes. The court granted Brooks summary judgment that Creative Arts' use of the proposed Cab Calloway mark violated the Lanham Act because it was confusingly similar to Brooks' The Cab Calloway Orchestra mark. The Trademark Trial and Appeal Board previously had found that the similarities between the parties' marks would result in likely confusion. The court concluded that no reasonable jury could find that certain commercial activities by Calloway's widow—including authorizing sale of items bearing the Cab Calloway mark, and licensing and receipt of royalties from Cab Calloway's music—amounted to her operation of an "ongoing and existing" business between July 23, 1999, and Jan. 22, 2001. Thus the widow's Jan. 22, 2001, assignment of an intent-to-use application for the Cab Calloway mark to Creative Arts was invalid.

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