Two founding members of the Guess Who are asking a California judge to throw out a lawsuit against them filed by the band’s two best-known members, arguing claims of false advertising by Randy Bachman and Burton Cummings are “meritless,” since band lineups change all the time.
Bachman and Cummings accused their former bandmates, former bassist Jim Kale and drummer Garry Peterson, of deceiving fans by touring under the Guess Who name in a lawsuit filed in late October in the U.S. District Court in California.
Kale and Peterson were among the founding members of the Winnipeg band, which produced hit songs like American Woman and These Eyes and became the first Canadian group to hit No. 1 on the Billboard Hot 100 chart in 1970.
Kale has not performed with the latest incarnation of the band — which Bachman and Cummings’s lawsuit refers to as “the cover band” — since 2016, and Peterson makes infrequent appearances with the group, according to suit.
But in a recent court filing, the defendants argue they’ve always been upfront about the band’s numerous member changes and have never advertised Cummings and Bachman as being part of the current lineup.
“Consumers who see an ad for a concert by the Guess Who would not reasonably assume that Bachman and Cummings are performing merely because they were in the band many years ago,” says the defendants’ memorandum.
“And of course, fans of the Guess Who — the advertising’s target audience — know Bachman and Cummings have not been in the band for decades.”
The October lawsuit says Kale later registered the trademark for the Guess Who’s name with the U.S. patent and trademark office in 1986, without the knowledge of Bachman or Cummings, and made false misrepresentations while doing so.
However, the defendants say there’s “no dispute” that they lawfully own the Guess Who trademark and are allowed to call their band by that name. They also claim Bachman and Cummings have admitted this.
“Bachman and Cummings do not and cannot plausibly allege that the Guess Who are only the Guess Who when they are in the band,” the memorandum says.
The Guess Who’s website says its current lineup includes Peterson, Derek Sharp, Michael Staertow, Teddy Andreadis and Greg Smith.
Either Kale or Peterson have led the band since Cummings left in 1975, performing hundreds of shows and releasing new albums as the Guess Who, their court document says.
“As a result of their continuous use of the name ‘the Guess Who’ for decades, Kale and Peterson indisputably own the trademark rights to the name and hold multiple federal trademark registrations,” it says.
None of the allegations have been proven in court.
Kale, Peterson and the band’s current lineup are asking U.S. District Court Judge Fernando Aenlle-Rocha to dismiss the lawsuit filed by Bachman and Cummings in its entirety.
A hearing is scheduled for Jan. 26, 2024.
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