Phish Files Lawsuit Against Fan

Bringing years of confrontation to a head, Phish has filed a lawsuit against longtime fan Sean "Waldo" Knight, who for nearly a decade has marketed merchandise based on Phish logos and the what the ba

Bringing years of confrontation to a head, Phish has filed a lawsuit against longtime fan Sean "Waldo" Knight, who for nearly a decade has marketed merchandise based on Phish logos and what the band claims is its intellectual property. The items in question include T-shirts and stickers, many of which juxtapose Phish song titles and lyrics with recognizable logos, such as the Tide detergent bullseye and the band's song "Glide."

Originally filed in California and last month transferred to Vermont, where all parties reside, the suit also names Knight's Knighthood Clothing business partner, Joanne Reader. Phish has also issued a cease and desist order on production of goods, and charges that Knighthood Clothing is in violation of trademark laws. The band is seeking a reward in the amount of Knight's profits, attorney fees and costs, and damages.

"It's poppy, quirky stuff," says Knight who began following the band in 1992 and started making shirts shortly after that. His first design entailed the Phish logo outline with a maze inside and the words "Never get out of this" -- referencing lyrics from the Phish song "Maze." Knight first ran into trouble with the band when he gave drummer Jon Fishman a shirt, and was subsequently told that using the logo was problematic. According to Knight, he got rid of the remaining shirts and began working on other ideas. However, the incident was the first of many that resulted in complaints from the Phish organization.

"Competition was not in their game plan," Knight accuses. As he sees it, the effect, if any, of his business on Phish's sales has been negligible. Citing an affidavit from Phish archivist Kevin Shapiro, he notes that Phish ships approximately 900 merchandise orders a week, while Knight claims to fill around 30. He also admits that the severity of the situation might have something to do with his "bad behavior" -- refusing to abide by what he says were conflicting messages from various Phish personnel by taking his shirts to stores and trade shows, and ignoring previous cease and desist orders.

"Generally, most situations are easily and amicably resolved with a cease and desist letter and follow-up conversation or simply with an email from our in-house attorney," band manager John Paluska states. "It's certainly not our first choice to get entangled in a lengthy court process. Unfortunately, it was our only remaining alternative in this case as [Knight] refused to comply with prior requests."

The band claims that the use of song titles and lyrics is within their intellectual property rights and that Knight's items are frequently mistaken to be official Phish merchandise. "We are required to protect our trademarks," Paluska asserts, "or we risk diluting them." Protection methods include constant monitoring of unauthorized sales on the Internet, where Knighthood Clothing does most of its business. "Clearly, we cannot prevent every instance of apparent infringement," Paluska admits, "but within reason we endeavor to do so."

While Knight hopes for a positive outcome, Paluska draws a line clearly in the sand: "If there was a mutually positive agreement to be reached, I doubt things would have progressed this far. A positive outcome of this case from our point of view means Sean and his business ceasing any activity that infringes upon Phish's intellectual property."

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