UK High Court Upholds Refusal of "THE COMMODORES" Mark for Bad Faith

By Imaduddin

Photo: Ralf1403 / Pixabay

Who owns a band's name after members leave? In the UK, at least for THE COMMODORES, the answer goes against a founder. On 23 October 2026, Mr Justice Richards of the High Court in London dismissed an appeal by Fifth Avenue Entertainment LLC, a company controlled by former member Thomas McClary, against the refusal of its UK application to register "THE COMMODORES" ([2026] EWHC 2730 (Ch)).

How the case got here

The application was filed on 30 July 2021. Commodore Entertainment Corporation, which has run the band's business since the 1980s, opposed it on two grounds: earlier goodwill in the name in the UK (passing off under section 5(4)(a) of the Trade Marks Act 1994) and bad faith under section 3(6). A hearing officer at the UK Intellectual Property Office upheld both objections in a decision dated 20 March 2025.

According to the judgment, the band members signed a partnership agreement in 1978 providing that, if members left, the partnership would continue and keep the right to use the group name. A 1984 amendment changed the partnership's role, and the court's press summary says the hearing officer was entitled to find that the opponent had rights in the name following that 1984 transaction. The opponent's line-up, without Mr McClary, toured the UK in 1992, 2005 and 2009.

Why the appeal failed

The court stressed that an appeal from the IPO is a review, not a rehearing. The judge only asked whether the hearing officer's conclusions were clearly wrong, and found they were not.

On bad faith, the judgment explains that the hearing officer reasoned that, even on the applicant's best case, Mr McClary must have realised the filing would exclude others with at least as much right to the name, including a business that had used it for over 30 years. The judge held the hearing officer was entitled to treat this as a rebuttable presumption of bad faith, and to find that Mr McClary's explanations, including a wish to tour the UK in 2014 and his view that US court orders went too far, did not rebut it. That approach did not reverse the burden of proof and was consistent with the hearing officer's self-direction based on SkyKick v Sky, the UK Supreme Court's 2024 ruling. Some new arguments were also shut out because they had not been run below.

According to the judgment, the applicant still holds an EU trade mark for the same words: after Brexit, the EUIPO Board of Appeal declined to reconsider an opposition that rested only on goodwill in the UK. So the name is now treated differently in the UK and the EU.

The Indonesian angle

Band and artist names are a recurring source of filings in Indonesia too. Under Article 21(3) of Law No. 20 of 2016 on Marks and Geographical Indications, an application filed by an applicant acting in bad faith is refused, and Article 77(2) allows a cancellation action to be brought without time limit where bad faith is involved, instead of within the usual five years from registration. We are not aware of an Indonesian court decision on a band-name dispute with facts like these. For groups, the safer move is the one this band made back in 1978: put in writing who keeps the name when members leave, then register it in the markets where the group performs.

Sources

• [High Court of England and Wales, Fifth Avenue Entertainment LLC v Commodore Entertainment Corporation [2026] EWHC 2730 (Ch), judgment (23 October 2026)](https://www.judiciary.uk/wp-content/uploads/2026/10/Fifth-Avenue-Entertainment-LLC-v-Commodore-Judgments.pdf)
• Courts and Tribunals Judiciary, press summary (23 October 2026)
• Law No. 20 of 2016 on Marks and Geographical Indications (BPK legal database, PDF in Indonesian)
• Solicitors Journal, "Fifth Avenue Entertainment v Commodore Entertainment: High Court dismisses trade mark appeal over band name" (23 October 2026)