Most "BOSTON" Trademark Claims Dismissed In Dispute Between Former Band Members

Scholz v. Goudreau, No. 13-cv-10951 (D. Mass. Memo & Order Sep. 21, 2015).

In a trademark dispute between two original members of the band BOSTON, the Court dismissed most of the claims against a guitarist on the band's first two albums concerning the promotion of his current musical endeavors.  Plaintiff's direct trademark infringement claims were dismissed with respect to various advertisements and performances, as well as defendant's use of meta-tags on his website.  The contributory infringement claim survived summary judgment only with respect to defendant's invovlement with one band on the issue of direct control and monitoring of that band's advertisements and promotions.  Plaintiff's claim for dilution by tarnishment failed because the alleged use, in connection with a political event, was not a use in commerce.  As to unfair competition under the Lanham Act and Mass. state common law, plaintiff failed to establish evidence of reputational injury.  As to breach of contract, plaintiff fialued to establish that defendant (and not third parties) violated a prior settlement agreement by deviating from the agreed to term "formerly of BOSTON".  As to the "Truth In Music Statute," under Mass. state law, the Court found the statute applicable only to performances in Mass., and as to the two subject performances in the state, neither group sought to perform under the BOSTON name.