Tuesday, September 4, 2012

Merchandising arm for Rush takes aim at knockoff clothing - Pittsburgh Post Gazette

In advance of Tuesday's Rush show, the firm that sells the band's concert-wear asked a Downtown court over the weekend to order federal marshals to help stamp out knockoff gear.

The lawsuit in U.S. District Court is a reminder of what happens when counterculture gets lucrative. The band that cemented its cult status with a 1981 anthem declaring that its hero's "mind is not for rent to any god or government" has rented its brand to a firm that wants the government to protect its investment.

The lawsuit filed by Ontario-based Showtech Merchandising Inc. said unnamed "independent unlicensed peddlers," who are mostly "nomadic individuals without business premises," will descend upon Rush's concert sites with inferior merchandize emblazoned with the band's name and the images of members Neil Peart, Geddy Lee and Alex Lifeson. The Rush show at Consol Energy Center will be the third stop on a tour that runs through December, and Showtech would like to get a judge's order in Pittsburgh that it can use to police all of the American cities the band will play.

The complaint said a judge should direct federal marshals, and authorize local and state police and agents hired by Showtech, to scoop up knockoff T-shirts and similar items.

Jules Zalon, the New Jersey attorney who authored the lawsuit, said he has "gotten probably 250 or 300 of these types of orders" on behalf of entertainment acts. "These days bands make more money from merchandise than from concert tickets," he said, and it's important to control the market.

Local attorneys said the approach Mr. Zalon is taking seems unusual.

"I haven't seen anything like that here," said Henry Sneath, a Downtown-based intellectual property attorney. "I don't know how you preemptively have a court order somebody not to do something that you don't know that they're going to do," he said, adding that it's especially difficult when you don't know who the would-be offenders are.

Mr. Zalon filed a similar lawsuit last year in federal court in North Carolina, and a judge there issued an order to marshals to help Showtech to seize imitation Rush merchandise. Mr. Zalon said it had great deterrent value.

"If the bootleggers know that there are injunctions around, then they're less likely to follow the tour," he said. "It's amazing that with the stroke of a pen, the judge can prevent bootlegging from happening."

He said Showtech will hire off-duty city police to act as its agents outside the venue, to be accompanied by marshals if a judge so orders.

Pittsburgh police spokeswoman Diane Richard confirmed that city officers can help to ferret out fake merchandise, if they're detailed through the bureau, paid by the company and armed with a court order specifying the nature of the counterfeit goods.

The case has been assigned to U.S. District Judge David S. Cercone.

Mr. Sneath said a judge will likely want to know whether Showtech faces the threat of irreparable harm that can't be reversed with the payment of money. He said a judge also might demand some evidence of the nature of the knockoff merchandise.

Gene A. Tabachnick, a partner in the intellectual property group at Reed Smith, Downtown, said getting an order and then chasing the low-level T-shirt vendors who scurry around outside concerts sounded futile.

He had his doubts that a judge here would grant Showtech's request. "The farther you get away from knowing who the wrongdoer is and what they did wrong, the more problematic it becomes," he said.

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