A federal judge in Miami has sided with rhythm-and-blues band Earth Wind & Fire in its lawsuit against an “alumni” act it claimed was infringing on its trademark.
On Monday, U.S. District Judge Federico A. Moreno filed a ruling agreeing with Earth Wind & Fire’s claim that promotions by a band with no original EWF members were confusing consumers into believing they were buying tickets to see the real thing.
The trademarked Earth Wind & Fire name and its familiar Phoenix logo is owned by the sons of founder Maurice White, who died in 2016. Original members Philip Bailey, Maurice White’s brother Verdine White, and Ralph Johnson continue to tour as Earth, Wind & Fire under license.
In March 2023, the White sons filed suit against two promoters — Georgia-based Substantial Music Group LLC and Indiana-based Stellar Communications Inc. — that the sons claimed were staging concerts by a group of one-time side musicians under the name Legacy Reunion: Earth, Wind & Fire Alumni.
Those shows continued through the litigation.
According to listings on the Ticketmaster website, the act is scheduled to perform under the infringing name in Charlotte, North Carolina, on March 14, and on two dates in Evansville, Indiana, and Bloomington, Illinois in May.
A spokesman for Substantial Music Group LLC did not immediately respond to emailed questions about whether the group would change its name in the wake of the ruling. A penalty hearing is scheduled the week of May 28.
Earth Wind & Fire’s attorney, David I. Greenbaum, partner in the San Francisco-founded law firm Rimon P.C., said, “We appreciate that the court decided in our client’s favor on liability for trademark infringement. We await the trial on damages.”
Greenbaum said he believes the ruling requires the alumni band to make changes prior to the penalty trial.
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In a 33-page ruling, Moreno considered numerous arguments offered by both sides, including the defendants’ assertion that the trademark was diluted because other bands have performed using the words Earth Wind & Fire in their names.
But those examples were different, Moreno said, because those bands included the word Tribute in their names, making it clear that they were not original members.
The defendants’ name, Moreno wrote, “implies not that they are ‘covering’ or ‘reproducing’ the music but were the original performers.”
Ultimately, the name and images used by the alumni band confused consumers into thinking they were paying to see the actual band, the judge said.
The ruling cited social media comments from Earth Wind & Fire fans who bought tickets to see the alumni band and were disappointed when none of the original members showed up.
Those feelings were echoed by reviews on the Ticketmaster website by fans who paid to see the alumni band in November at Duke Energy Center for the Arts in St. Petersburg.
While one fan wrote after the show, “Earth Wind & Fire was awesome,” another declared himself “NOT HAPPY!” and scolded the promoters for advertising that he said was “very misleading.”
Another concertgoer reported reading that there would be no Phillip Bailey or Verdine White and wondering “how good this band would be.”
“They were not good,” the reviewer said, “they were REALLY good!!!”