Monday, December 29, 2008

A “Kool” False Advertising Lawsuit

On December 23, 2008, two companies associated with the famed singing group “Kool & the Gang“ (The Name Vault, LLC and Gang Touring, Inc., together the Plaintiffs) filed a false advertising and unfair competition lawsuit against the Las Vegas Sands Corp., Venetian Casino Resort, LLC and Sennie “Skip” Martin in the U.S. District Court for the District of Nevada. See The Name Vault, LLC et al v. Las Vegas Sands Corp. et al, Case No. 08-cv-01809 (D. Nev. Dec. 23, 2008). A copy of the complaint is available here (courtesy of

The Name Vault is the current owner of the intellectual property belonging to the group “Kool and the Gang” which was first formed in the 1960s by George Brown, Dennis Thomas, Ronald Bell (n/k/a Khalis Bayyan), Robert “Kool” Bell, and the late Claydes Charles Smith and best known for its musical hits “Celebration” “Get Down On It” and “Ladies Night”. Among The Name Vault’s trademark asserts are federal trademark registrations for KOOL AND THE GANG (word mark) and KOOL AND THE GANG (and Design) – both covering entertainment services in the nature of live performances by a musical group and series of musical sound recording. Gang Touring is the operating company that handles the day-to-day operations of the group and uses the The Name Vault’s intellectual property under license. Both companies are owned by the four surviving original founding members (George Brown, Dennis Thomas, Khalis Bayyan, and Robert Bell)

According to the complaint, Martin joined the group in 1987 as a trumpet player and vocalist. Martin served as a trumpet player and vocalist periodically for the group from 1987 to 1995 and again from 2000 until 2007. The complaint notes that Martin has never been the lead singer, lead vocalist, or frontman for the group.

This last fact is critical because according to the complaint, sometime in December 2008, the Venetian began promoting a New Year’s Eve concert appearance by Martin – billing Martin as the “former lead singer of Kool & the Gang.” Specifically, the ad (viewable here) reads:

Immediately following Fergie’s high-energy performance, Grammy Award-winning artist Skip Martin, former lead singer of “Kool & the Gang,” will take the stage at 10:45 p.m. and perform hit songs like “Celebration” and “Ladies Night.”

According to the complaint, Martin never performed “Celebration” or “Ladies Night” with the group. Plaintiffs also became aware that Martin was promoting himself on his website,, as the “lead vocalist” for the group from 1987-1995 and from 2000 to the present.

Plaintiffs sent the Defendants a cease and desist letter on December 11, 2008, warning that Plaintiffs would take legal action if the Defendants did not stop their infringing conduct by December 18, 2008. The Defendants refused to pull the ad, and so Plaintiffs filed suit.

Plaintiffs causes of action are for false advertising under 15 U.S.C. §1125(a) as well as common law false advertising and unfair competition.

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