31 July 2018

Rage Against The Machine Rage Against Farage

On July 10th, Rage Against The Machine sent Nigel Farage a cease-and-desist letter, denouncing his podcast Farage Against the Machine as a brazen attempt to associate it with the name of the band. 

The one is a 1990’s funk/metal fusion band with relentlessly left-wing lyrical overtones; the other is a Member of The European Parliament, the founder of UKIP and the master campaigner at VoteToLeave.

The band states that ‘an integral part of the band’s identity’ has always been in denouncing ‘the type of right-wing ideology… and anti-immigrant rhetoric (Farage) espouse’ before going onto suggest that the former UKIP leader should ‘find some other target to troll’.

Multiple threats are implied in the opening paragraph of the band’s letter. The letter suggests Nigel Farage’s actions are in breach of laws regarding trade mark infringement, false endorsement, and ‘common law rights’ here in the UK, i.e. the law of passing-off.

The reality of The Rage Against The Machine trade mark, namely, it’s registration history, and the extent of the goodwill attached to it, dampen the practical impact of these threats.

In terms of an action for trade mark infringement, the expiration of the mark, limits the ability to take action over the name of the podcast. There is a similarity between the marks; the only difference between the two comes in the introduction of Farage’s name, leaving R-A-G-E intact. While the notion of rallying against “The Machine” as a broad synonym for the established position, the political establishment, or simply the status quo, has no claim to an origin, the actual phrase “Rage Against The Machine” was allegedly coined by the band frontman Zac La Motta himself.

Therefore, the expression is quite distinct and the likelihood that the connection is purely coincidental unlikely. The services of both brands would also loosely fall within entertainment under class 41, and while podcasts and music are not synonymous or dramatically similar, this is offset by the aforementioned similarities of the marks. This would leave a possible case that the mark could cause confusion as to the affiliation between the two undertakings.

The mark has expired in the US and is not protected in the UK. The only potentially applicable definition in statue in the UK would be that of a well-known mark under The Paris Convention. Such protection is reserved for household names with recognition extending far beyond the actual use of the goods attached to the mark. Rage Against The Machine is not that well known, or is it?

The same issue nullifies a claim that Nigel Farage is exploiting or unfairly causing damage to the band’s name. Had the mark been registered this would be the band’s best avenue, as there is no need to show intention to deceive or success in so doing, only that a play on the band’s name perks the pundits’ interest in Farage’s podcast, however fleetingly.

This leaves the band with reliance on the law of passing off. Rage Against the Machine were pioneers of their genre in the 1990s. Their music was based on a very minimal aesthetic, revolving around stomping rhythms akin to Led Zeppelin, grating industrialised guitar solos, and a raspy rapped vocal delivery. They were novel and abrasive and the limited initial success of the music reflected this. The band split ways at the turn of the twenty-first century, with the remainder of the band bar frontman Zac La Motta going on to found Audioslave with Chris Cornell.

Despite large periods of complete inactivity since, the band’s fan base continued to expand, and recognition of their music went far beyond their conventional fan base. In a call to arms against the staple diet of X-Factor’ Xmas number ones, the band was the subject of a social media campaign to make ‘Killing in the name of’ a UK number one single on Christmas day 2009. This illustrates Rage Against The Machine’s recognition over time as a broader mark for activism, no doubt bringing with it a new legion of fans along the way. In the era of streaming and digital playlists, Rage Against The Machine remains in wide circulation as a bastion of the 90s - residual goodwill is something to bear in mind.

Would Nigel Farage have intended to draw an association between the two marks in abuse of this goodwill? The band contends this but passing off success is also reliant on misrepresentation and damage.

To reiterate, the one is a rap/metal fusion band that has dressed up as Guantanamo Bay inmates and staged protests on Wall Street, the other is a former commodities trader and the founder of VoteToLeave. By the band’s own admission, one is the political antithesis of the other. Furthermore, the band’s politics is so closely associated with their sound that even the most casual listener would recognise the distance between the two. It is quite possible that members of the public new to Nigel Farage’s podcast might perceive the title as a comical play on this distance. In light of the above realities it is questionable whether a judge would ever be convinced by the notion that the relevant public for the one brand would have been, or would be, misled to think that it endorses the other, but not out of the question.

The band’s official statement on the matter is that the podcast has ‘diluted the brand’ so it is clear which angle will be taken if the dispute goes any further. If anything, given the wide circulation of the cease-and-desist letter across many news outlets, including Sky news, the coverage could probably serve to do the exact opposite and actually spike interest in the band and plays online.

The principle purpose of the band was probably to make their feelings on the matter very clear. The case serves ultimately as a reminder of the ways marks can be adopted or referenced if owners are not proactive in registering and maintaining their rights.

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