March 10, 2014 3:16pm PT by Eriq Gardner
Devo Settles Lawsuit Over Funny-Looking Hats
Pharrell Williams, call your lawyers. That oversized hat worn to the Grammys might be a legally protectable signature look.
Don't believe us?
Check out Devo, the New Wave band that hit it big with the 1980 smash "Whip It." The song was featured on the band's third album, Freedom of Choice, and on the album cover (pictured), Devo members wore funny-looking headgear they called "Energy Dome Hats."
Six years ago, there was a mini media frenzy upon word that Devo was suing McDonald's over a Happy Meal toy featuring a similar-looking hat. The furor quickly died when Devo's attorney shot down the news reports as false. There was no lawsuit.
Well, at least not until this past New Year's Eve when Devo filed a lawsuit in Indiana state court against T.V. Store Online, which advertises itself as a source for classic TV and movie shirts and memorabilia. Devo, along with its official licensee Swag Merchandising Inc., alleged that the defendant was retailing unlicensed "Energy Dome Hats."
On Friday, after the lawsuit was removed to federal court, the parties told a judge that a settlement had been reached.
Unfortunately, this means there won't be much clarity as to whether those funny-looking hats are the property of Devo, but we'll explore anyway.
In the lawsuit (read here), Devo alleged violations of trademark. The complaint mentions a pair of federal trademark registrations for "DEVO" in connection with "entertainment services" and "sound and visual recordings" but doesn't go into any specificity about why that protects "Energy Dome Hats."
Clare Neumann, an IP licensing executive at CMGWorldwide, who is providing counsel to the band, tells us the case could have argued that T.V. Store was infringing trade dress and common law trademarks in the way the defendant was confusing its customers about source of origin.
Perhaps a tad less tenuous, Devo was also asserting violations of the band's right of publicity.
Indiana's publicity rights statute (one of the most generous in the nation) protects a personality's name, voice, signature, photograph, gestures, mannerisms and, yes, distinctive appearance, from being used in connection with commercial merchandise.
Devo was a rock band consisting of members from Ohio, but thanks to local firms like CMG, Indiana has gone out of its way to extend statutory rights afar, "regardless of a personality's domicile, residence or citizenship," and it doesn't matter much whether the personality is living or dead.
Alas, a lawsuit in Indiana over Devo's Energy Dome Hats.
Neumann says the terms of the settlement are confidential and can only say that the parties are satisfied.