Verdict in Wishbone Ash name case
Andy Powell’s right to own the Wishbone Ash name has been upheld in court – but former bandmate Martin Turner is seeking to appeal the ruling.
The title has been in dispute for years, with founding member Powell having registered it in 2000 and co-founder Turner having worked as Martin Turner’s Wishbone Ash for the past nine years.
Turner wanted the registration to be declared invalid, arguing that Wishbone Ash was his “life’s work” and he’d “never willingly left” the band. Powell countered that he’d continued to use the name since the outfit were formed in 1969 while Turner had “left twice to pursue other interests in 1980 and again in 1991″.
Enterprise judge Douglas Campbell found in favour of Powell, saying in his 135-point ruling: “The Claimant [Powell] has since 1969 been a member of a large number of different band line-ups which have all traded as ‘Wishbone Ash’. The Defendant [Turner] has been a member of some of these lineups, including those which span the band’s most successful period of 1969 to 1981.
“The Defendant created the name ‘Wishbone Ash’, which the band used.
“I have found that by February 1998 the Claimant was the sole owner of the goodwill in the Wishbone Ash mark. The situation did not change thereafter.”
Campbell also found that Powell had never intended his registration of the name to prevent former members of Wishbone Ash from working, noting: “He specifically denied that he made the application in his sole name in an attempt to exclude Steve Upton, the Defendant, or Ted Turner. As he explained in cross-examination, by February 1998 he had concluded that they were not interested in performing under that name.”
Turner successfully argued for a stay in the ruling so he can seek an appeal. He says in a statement: “Mr Powell unilaterally registered Wishbone Ash in his own name only, without the knowledge of his Mark 1 and 2 band mates, keeping it secret even as they continued to work together on projects such as Lost Pearls.
“The other Mark 1 and 2 members – Martin Turner, Ted Turner, Steve Upton and Laurie Wisefield – objected and a counter claim was filed, as they felt the registration of the trademark should be shared. Unlike Mr Powell’s case, there was never any attempt to stop Mr Powell using the name Wishbone Ash.
“The judgement perversely upholds Mr Powell’s registration of the trademark at this time, as if on paper, he is Wishbone Ash, which will defy logic and gravity with many Wishbone Ash fans who remember Argus, New England and the many other iconic albums which have never been eclipsed to this day.
“The judgement is currently stayed as Martin Turner seeks an appeal on what he is advised are fundamental legal points. As a consequence, it’s business as usual for the forthcoming Martin Turner’s Wishbone Ash shows. The judge cut across what Mr Powell was seeking and found that Martin Turner can still use the name Wishbone Ash in concert billing. This was another unsuccessful totalitarian attempt by Mr Powell, who had previously unsuccessfully [in 2005] tried to take the domain name www.wishboneash.co.uk which remains owned and controlled by Martin Turner.”
Legal firm Walker Morris say in a statement on Powell’s behalf: “Martin Turner formed a band under the name ‘Martin Turner’s Wishbone Ash’ in response to which Andy Powell brought trade mark infringement proceedings against him. Martin Turner denied infringement and sought to have the European wide trade mark registration in Wishbone Ash, which is owned by Andy Powell, to be declared invalid.
“His Honour Douglas Campbell dismissed Martin Turner’s counterclaim and declared both that Andy Powell’s European wide Community trade mark rights to be valid, and that such rights had been infringed by Martin Turner. The judge rejected Martin Turner’s assertion that his previous historical connection with the Wishbone Ash band provided him with a defence.
“Accordingly, the judge awarded Andy Powell an injunction restraining the future use of the name Martin Turner’s Wishbone Ash, which injunction will be suspended for a short time pending an appeal of the decision which Martin Turner has indicated he is contemplating.
“The judge also awarded Andy Powell more than £40,000 in costs and has ordered Martin Turner to deliver up all flyers, CD covers and other material which bears the name to which Andy Powell had objected. In addition, Martin Turner was ordered to submit to an enquiry as to what damages and/or unlawful profits were made through his use of the name.”
An appeal date has not been set.