Frank Sullivan, a founding member of rock band Survivor, has lost his trademark-infringement battle against TVT Records and producers of the television show "Survivor."
NEW YORK -- Frank Sullivan, a founding member of rock band Survivor, has lost his trademark-infringement battle against TVT Records and producers of the television show "Survivor."
The Seventh Circuit Court of Appeals in Chicago held on Sept. 24 that Sullivan failed to show that consumers would believe that the show's merchandise and CDs were those of the band.
Survivor had a number of hits in the 1980s, including "Eye of the Tiger," which won a Grammy and an Oscar after it became the theme songs for the film "Rocky III." The band toured extensively for several years and released its first hits collection in 1989.
Founding members Sullivan and James Peterik registered the name Survivor as a trademark in 1994 after litigation among the bandmembers. Sullivan eventually held all trademark rights to the band's name.
In May 2000, CBS Broadcasting debuted its reality television series "Survivor." The producers launched a line of merchandise the following month and released a soundtrack album in August of that year through TVT Records. The CD cover included the word "Survivor" with the phrase "The Official Soundtrack to the Hit CBS TV Series."
Sullivan, who continues to tour under the name Survivor, sells merchandise and CDs at his shows even though the band hasn't released any new music in the United States since 1993. He sued CBS, Survivor Productions, TVT and others in 2000 for trademark infringement.
In affirming the District Court's summary judgment in favor of the producers and distributors, the court noted that the word "Survivor," as it appeared on the soundtrack CDs, looked "quite different" from the band's trademark.
CBS offered results of a survey showing that consumers were not confused when it came to distinguishing the show's CDs from those of the band. The court wrote in its opinion that Sullivan failed to present a survey of its own showing confusion among consumers and failed to present any other substantial evidence to support its claims.
The three-judge panel concluded: "Sullivan, through his band Survivor, has been fortunate enough to have a successful rock band, succeeding in a business where many fail. CBS, through its show 'Survivor,' has (for better or for worse) revolutionized the world of reality television. Both Sullivan and CBS are using the same mark, but we hold that there is no likelihood of confusion in the minds of consumers."
Sullivan's attorney did not return a call for comment.