- (i) Turner's use of 'Martin Turner's Wishbone Ash' as the name of his band, which provided live and recorded musical performances, and
- (ii) Turner's use of a domain name www.wishboneash.co.uk.
Mr Recorder Campbell plumped for Powell. In his view:
* There was no evidence to support the assertion that Powell's application was made in bad faith. On the facts, he was the sole owner of the goodwill in the name Wishbone Ash on the date he applied to register it.
* Neither 'Martin Turner's Wishbone Ash' nor the domain name www.wishboneash.co.uk were identical to the trade mark as registered.They were however similar, which then raised the questions whether there was any likelihood of confusion -- whether there had been any actual confusion or not -- and whether there had been a taking of an unfair advantage of the reputation in the name Wishbone Ash without due cause.
* The use of 'Martin Turner's Wishbone Ash' involved a clear likelihood of confusion with the registered mark, especially since that sign was not just similar but highly similar to the mark as registered. Turner had also used the name Martin Turner's Wishbone Ash and the domain name without due cause. There was no reason why the use of the domain name as part of web pages dealing with the band's historical background should cause any type of injury to Powell's CTM -- but use of the name for marketing Turner's band was a very different issue.
* The use of the domain name in the course of normal advertising also infringed Powell's CTM.
* There was no basis for ordering an account of profits in Turner's favour or for holding Powell's CTM to be invalid.
Once again, there were no legal terrors in this case: it was just another sad situation in which there wasn't quite enough talent or goodwill to go around, leaving one aged rock musician grasping at straws. But where were the lawyers when the group's legal and commercial parameters were being forged?
Wishbones: do they ever work? Here
Ashes to Ashes here