Drifting Along ...

For over a decade, Faye Treadwell (“Treadwell”), widow of the late music executive George Treadwell, and Larry Marshak (“Marshak”), a promoter of various doo-wop groups, have fought tooth and nail over the rights to use the trademark of “The Drifters,” the legendary singing group.

The dispute in this case centers on the trademark rights to The Drifters , a popular singing group from the 1950s and 1960s.1 The Drifters first appeared in 1953 and came under the management of George Treadwell the following year. George Treadwell hired and paid the individual performers as employees, replacing them frequently. For nearly two decades, The Drifters as an entity persisted, though the membership of the group was constantly in flux. George Treadwell passed away in 1959, and his wife, Faye Treadwell, took over management of the group.

By 1970, The Drifters had largely ceased to perform in the United States, although their songs were still played on the radio. Marshak, an editor for a rock magazine, saw this as an opportunity. Working with CBS Radio, which had shifted to an “oldies” format, Marshak reunited some of the former members o f the group – those who had been replaced over the years by the Treadwells – for a series of reunion concerts. Capitalizing on the success of these concerts, Marshak signed the former members to exclusive management contracts and began marketing them as “The Drifters.”

Over the next three decades, Marshak continued marketing The Drifters in the United States. His efforts at promotion were occasionally interrupted by trademark infringement litigation – Faye Treadwell sued Marshak, and Marshak in turn sued other Drifters promoters – but these lawsuits were often inconclusive.

The case recently came before the Third Circuit focusing on the breadth of the injunction and efficacy of the remedies that were issued along with Judge Politan’s ruling. Judge Politan enjoined Marshak and his company from marketing The Drifters anywhere – not On Broadway, not Up On the Roof, and not Under the Boardwalk – and ordered a full accounting of profits.

Treadwell, thinking that these actions were not Some Kind of Wonderful, thus brought a motion for contempt, arguing that the Politan injunction applied to Marshak’s associates as well as to Marshak. After a lengthy hearing, the District Court found that Marshak and his associates were in contempt of the Politan injunction, but limited Treadwell’s remedies to an award of attorneys’ fees. Both sides then appealed: Marshak and his associates appealed the merits of the decision, while Treadwell challenged the paucity of the remedies.

Reviewing the record in its entirety, the Third Circuit found ample support for the District Court’s contempt findings against the Marshaks and Singer Management for the violation of the lower court’s injunctions and solidifying the ownership of The Drifter’s mark with the Treadwells.

The Trademark Company