and equipment, a promotional trip to Europe that cost approximately $ 28,000 in costs and expenses, as well as other expenditures. However, Tsiolis failed to proffer receipts or any other evidence to support his testimony regarding these expenditures.
Though the band has yet to reach mainstream fame, the band has attracted media attention. Its demo tapes were noted or discussed at least over forty times in various magazines directed to music fans (and at least once in the Chicago Tribune) as well as over 120 times in domestic and international "Fanzine" newsletters, which are both published and distributed by fans of the Band. Its "Eyes of Tomorrow" album received critique and review approximately seventy times in music magazines concentrating on the heavy metal music genre, as well as in the Chicago Sun-Times, the Chicago Tribune and the Chicago Reader and foreign publications. At the hearing, counsel for Defendants repeatedly objected on relevance grounds to evidence that Tsiolis is well-known outside of the United States. It is well-settled, however, that the Lanham Act reaches all commerce that Congress can regulate, and that Congress "has the power to prevent unfair trade practices in foreign commerce by citizens of the United States, although some of the acts are done outside the territorial limits." Scotch Whisky Ass'n v. Barton Distilling Co., 489 F.2d 809, 812 (7th Cir. 1973) (citing Steele v. Bulova Watch Co., 344 U.S. 280, 285-286, 97 L. Ed. 319, 73 S. Ct. 252 (1952)). The band also received 923 letters from virtually every state in the United States, as well as from over 1,100 letters from 36 other countries.
The record makes clear that Tsiolis and his brother attempt to patrol the entertainment world for potential infringements of its mark. Whenever Tsiolis or his brother learned that other individuals or bands used the name "Aftermath," they wrote letters demanding that the infringing activity cease.
Tsiolis has high expectations for the release of another album, which purportedly is "ready to go." However, Tsiolis refuses to release the new album until the instant controversy is settled. Still, Tsiolis seeks to use the "Aftermath" mark to obtain "global domination" for the Band. In the meantime, the court observes. Tsiolis continues his full-time employment with a distinct and unrelated company.
B. The Alleged "Aftermath" Infringers
Defendant Andre Young is a well-known musician and producer of popular music, including music fitting within the genres of rap, hip hop, and rhythm and blues ("R&B"). He is known in the music world as "Dr. Dre." Dr. Dre either produced or recorded over twenty albums, of which consumers purchased thirty million copies. Defendant Interscope Records, Inc. ("Interscope") is principally known for the production and distribution of CDs, audio cassette tapes and vinyl records of popular music by various performers and groups. The entertainment company MCA owns fifty-percent of Interscope. Among the record labels distributed by Interscope is Death Row Records, a company with which Dr. Dre associated less than a year ago.
However, because of an apparent riff between Dr. Dre and other Death Row Records management, Dr. Dre chose to disassociate himself from Death Row Records and instead form his own label, the products of which would be distributed by Interscope along with those under the Death Row Records label. Dr. Dre contends that he chose to separate from Death Row Records because of its notoriety for criminal activity, negative musical themes, and the resulting gang-like turf battles between rappers living on West and East coasts of the continental United States. Indeed, Defendants' evidence shows that Tupac Shakur, a rapper associated with Death Row Records, was recently murdered in Las Vegas, Nevada. While not proven, some in the "rap music world" believe the murder to be a result of a feud between rap artists. Moreover, another rapper associated with Death Row Records, Snoop Doggy Dogg, is a former reputed gang member and convicted felon.
Dr. Dre and Interscope first chose to use the record label name "Black Market." However, for reasons not clear from the record, Dr. Dre and Interscope elected not to embrace the name "Black Market," and, instead, decided to use the name "Aftermath Entertainment." Dr. Dre selected the name "Aftermath" because the word signifies both the discontinuation of his relationship with Death Row Records, and the resulting solo venture by Dr. Dre, i.e., the "aftermath" of his separation with Death Row Records. Thereafter, Dr. Dre and Interscope formed Aftermath Entertainment ("AE"). The exact legal status of AE is currently uncertain, but it is contemplated that AE will be a joint venture.
The severance of Dr. Dre from Death Row Records received widespread media attention. For example, Dr. Dre's appearance on the cover of Vibe Magazine, a consumer oriented magazine for black/urban music like rap, was accompanied by the title "Free at Last, Dr. Dre is off Death Row and on a mission to rule the world." Likewise, BRE, an industry publication for black radio stations, put Dr. Dre on the cover of its September 1996 issue with the headline "Dr. Dre on his own." The article notes: "Considering the much-publicized goings-on at Dre's old home, the 'Aftermath' moniker alone is poetic." Moreover, the Los Angeles Times featured Dr. Dre on the cover of its "Sunday Calendar" section for October 13, 1996.
Prior to investing time and money in promoting AE, Defendants had available to them a detailed Thomson & Thomson Trademark Report, which included information regarding Tsiolis and the Band. The attorney for Dr. Dre and AE telephoned Tsiolis in an attempt to gain his consent for the use of the mark. On various occasions, the attorney spoke with Tsiolis and Tsiolis' brother. The attorney offered five thousand dollars in return for the use of the name "Aftermath" for naming a "small R&B label." The attorney did not disclose to either Tsiolis or his brother the nature and scope of Defendants' proposed Aftermath venture or that the venture involved Dr. Dre. After Tsiolis refused to consent to the use of his registered mark, the attorney offered a recording contract worth approximately twenty thousand dollars which would involve the assignment of the mark to Defendants. Tsiolis perceived the offer as a "sham."
But Defendants did not move on to a third choice for a label name. Instead, notwithstanding Tsiolis' persistent refusal to consent to Interscope's use of the word "Aftermath," Dr. Dre and Interscope moved forward with the establishment and promotion of AE. According to Defendants, AE will be involved in contracting with artists to produce, market and distribute new, up-and-coming artist's musical recordings. In a televised interview with a reporter for Music Television ("MTV"), Dr. Dre stated that, through AE, he intends to produce musical artists from a wide variety of music genres.
The first album to be released on the new AE record label is named "Dr. Dre Presents . . . The Aftermath" ("the Album"), which will be released by AE on November 26, 1996. The Album includes a compilation of sixteen different musical "tracks," performed by fifteen solo artists (the artist Sharief performs both "The Intro" and "L.A.W"), including Dr. Dre himself, and two songs performed by multiple rappers and artists. Dr. Dre's desired musical shift is reflected in the first compilation album and his two singles from it. The title of the album captures the fact that this is a new musical period for the artist following his "release" for Death Row. "East Coast, West Coast Killa," the first single, preaches the need to overcome the divisions in rap music, and the video includes artists from both coasts, yet shows his fans he still has "an edge." The song begins by evoking the present hostilities and beckons listeners to move to the "aftermath" of this violent period of infighting, which threatens the viability of the rap genre:
Gentlemen, we have a problem that has the potential to become a very serious problem. The east coast and west coast separation is exactly the weapon our enemies need to destroy our empire. So what we need to do is bring together some of the biggest, strongest, and smartest forces in the millennium, and this will be the beginning of the Aftermath.
. . .