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New Jersey will have to pay the legal fees for a music promoter that sued the state to stop it from enforcing its “truth-in-music” law. The U.S. Court of Appeals for the Third Circuit held in Singer Management Consultants Inc. v. Milgram, 09-2238, that the promoter, which accused the state of violating its constitutional and trademark rights, was a prevailing party for fee-shifting purposes.
The fee dispute grew out of the state's attempt in 2007 to enforce the newly enacted New Jersey Deceptive Practices in Musical Performances statute, N.J.S.A. '2A:32B-1 et seq. The law is aimed at impostor groups that perform under a name they have no right to use. It creates a separate offense subject to a $10,000 civil penalty for a first offense, $20,000 for a repeat and treble damages, and makes a violation illegal under the Consumer Fraud Act.
Live Gold Operations Inc. had put together a two-week concert series to start Aug. 18, 2007 at the Hilton Hotel in Atlantic City, featuring two acts, the Platters and the Coasters, whose legacies dated back to the 1950s. Shortly before the first show, the NJ Attorney General notified Live Gold that its use of the bands' names might run afoul of the law. Live Gold provided evidence it owned common-law, unregistered trademarks in the names, but the state insisted that to avoid liability, the concerts should be billed as a “tribute” or “salute.”
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