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March 19, 2001


The opinion of the court was delivered by: Wexler, District Judge.


In this case a group using the name "Champagne" alleges a federal cause of action for unfair competition pursuant to 15 U.S.C. § 1125(a). Damages and injunctive relief are sought pursuant to 15 U.S.C. § 1116, 1117 and 1118. Additionally, the Plaintiff partnership seeks recovery pursuant to various provisions of New York state law. Presently before the court are the parties' cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 For the reasons set forth below, the court denies Plaintiffs motion. The court grants the Defendants' motions to the extent of granting summary judgment on the sole federal cause of action. The court declines to exercise jurisdiction over the remaining state claims and accordingly, dismisses this action in its entirety.


I. Factual Background

The deposition testimony and other uncontroverted documents submitted in support of and opposition to each motion, reveal the following facts.

A. History of "Champagne"

In December of 1995, Charles Arcuri, one of the current partners in the Plaintiff partnership, founded a group and named it "Champagne." Champagne specialized in both band music and acappella singing of cover music (songs that had already been recorded by other musical groups). Champagne never performed any original music. The group, which has been comprised of various different members from time to time, has used the name "Champagne" and that name only, since December of 1995. Over the years, Champagne has performed at various bars, dance clubs and restaurants. With the exception of certain charity events and functions involving radio stations and town concert series, the group has generally received between $600 and $900 per performance. Defendant Frank Di Blasi and Charles Arcuri where responsible for booking performance engagements for Champagne.

While the precise membership has changed, Champagne has, at all relevant times, had a membership of approximately nine members. The members of the group have continuously changed as people have joined and others have left the group on a regular basis. To illustrate, Charles Arcuri founded Champagne in December 1995. Defendant James Santopolo joined Champagne in September of 1996, defendant Frank Di Blasi joined the group in November of 1996. Defendants Harold Miller and Jodi Giambrone joined Champagne in February and December of 1998, respectively. Mr. Miller and Mr. Santopolo were instrumentalists and Mr. Di Blasi and Ms. Giambrone were, during their tenure with the group, its lead vocals. Di Blasi was also Champagne's business manager.

There were other members of Champagne between the time it was founded and the time Jodi Giambrone became a member and there have been members added since that time. The current members of Champagne, the plaintiff partnership, are: Charles Arcuri, John H. Wagner III, Jack Stein, Vincent J. DeMeille, Edward Lupamello, Ruth Bobbie Levy, and Amy Kesten. This partnership was formed as of November 18, 1999. The parties point to no document indicating that any prior partnership agreement was entered into among the various individuals who earlier than 1999 (including Defendants herein) performed under the name "Champagne."

B. The Recording Contract

In September of 1998 Marvin Welkowitz, a sound engineer and recruiter for KEF Records (and a defendant herein) along with Steve Camhi, President of KEF Records, made a verbal offer of a recording contract to Champagne. Mr. Welkowitz states in his affidavit that the main interest of KEF records was the then lead female vocalist of Champagne, Dorothy Young. When Dorothy Young left the group, KEF records withdrew its offer of contract. Defendant Jodi Giambrone joined Champagne as Dorothy Young's replacement in the role of the group's lead female vocalist. After hearing Giambrone, Welkowitz and Camhi offered Champagne a new recording contract. This recording contract offer was later withdrawn when Di Blasi and Giambrone decided to leave Champagne.

C. The Trademark Search

Prior to withdrawal of the contract offer, KEF communicated to Champagne the necessity of obtaining trademark rights to the name "Champagne." In the event that such a trademark could not be obtained, KEF stated that it would require the group to change its name to one that could be trademarked. Frank DiBlasi, in his capacity as Champagne's business manager, was assigned the job of obtaining the trademark. Mr. DiBlasi caused a trademark search to be commenced at an expense of approximately $500 for which he was reimbursed by Champagne.

The results of Di Blasi's trademark search made it known to the group that the name "Champagne" could not be secured for the group. This is because the name had been previously trademarked by the Lawrence Welk Group, Inc. in the area of music, recordings, and movies. Mr. Welkowitz stated that he contacted the attorneys for the Lawrence Welk Group to follow up on the trademark issue and was advised that the band could not use the name. Neither ...

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