More details have emerged about the lawsuit filed by Dallas-based ECHO DRAIN against former METALLICA bassist Jason Newsted, his post-METALLICA band ECHOBRAIN, and Newsted's Chophouse Records over the two bands' similar-sounding names. In addition to alleging that fans are confusing the two groups and that some music fans believe that ECHO DRAIN stole the name from ECHOBRAIN when they insist the opposite is true, it now appears that one of the key arguments in ECHO DRAIN's favor is their assertion that Newsted "exhibited malice by purchasing two domain names, echodrain.net and echodrain.org."
"The cybersquatting confirms the merit in the lawsuit," ECHO DRAIN's litigation attorney, Morris S. Getzels of Beverly Hills, California stated. "Newsted was motivated to buy those names to ECHO DRAIN. You can try to explain away the similarity in the band's names and the song title as coincidences, but Mr. Newsted's purchasing of domain names in ECHO DRAIN's name cannot be explained away, or justified."
ECHO DRAIN, formed in Dallas in early 2000, filed to register their name, ECHO DRAIN, as a trademark with the United States Patent & Trademark Office (USPTO). The funk/punk band learned not long afterward that Newsted had filed applications to trademark the name ECHOBRAIN. ECHO DRAIN filed two months and two days before Newsted had applied for registration.
"He's clearly a day late, and a dollar short," says Andrew Libert, drummer for ECHO DRAIN. "We're first to file, and first to market. Newsted has no claim to the name."
According to ECHO DRAIN's official press release, Libert began playing drums for the punk band CHRONIC DISORDER in 1985, and sat in for DEAD KENNEDYS drummer D.H. Peligro during a set at Providence, Rhode Island club Lupo's Heartbreak Hotel. CHRONIC DISORDER was signed by Posh Boy Records and opened shows for bands such as the CIRCLE JERKS and GANG GREEN and played on the soundtrack for the movie All-Nighter, starring BANGLES singer Susanna Hoffs.
Regarding the suit, guitarist Todd Visentine puts it this way, "We were doing what we were supposed to do. We secured copyrights. We filed for trademarks. In an interview, Newsted claimed ECHOBRAIN is about taking music 'back to the grassroots level,' but he's backed by big money."
Last year, Libert & Associates, trademark attorneys for ECHO DRAIN, filed with the USPTO an opposition to Newsted's applications to register ECHOBRAIN. In the course of the opposition procedure, Newsted's attorney was supplied with a copy of ECHO DRAIN's demo CD. The demo contained the track "Sucker Punch", which is being described as one of ECHO DRAIN's "signature songs".
Newsted's counsel initially offered a settlement that one source close to the case called "pitiful." In what the press release describes as "an unlikely coincidence," ECHOBRAIN's debut album includes a song titled "Sucker Punch".
On June 11th of this year, Visentine and Libert filed a lawsuit against Newsted. The list of complaints include unfair trade practices, trademark disparagement, reverse confusion, injury to business reputation, and cybersquatting.
Getzels further states that ECHO DRAIN seeks to recover sufficient assets to adequately publicize, through advertisements and other announcements, that ECHO DRAIN came first.
Following the lawsuit's filing, ECHO DRAIN's web site has been deluged with hate mail, which in Getzels' opinion underscores the fact that there is "reverse confusion." "Music fans not only believe ECHO DRAIN is copying ECHOBRAIN, but appear to believe Newsted's reputation entitles him to prevail," according to ECHO DRAIN's press release.
Visentine sees irony in the suit. 'It's a total karmic whiplash. METALLICA sues Napster, who eventually gets shut down. Then they sue Victoria's Secret, Neiman Marcus, even a furniture company, all over use of the term 'METALLICA'. I grew up listening to METALLICA, that stuff with Cliff Burton was so cool."