Case No. EWHC-1798-(IPEC)

11.Much of the broad factual background is agreed. It was common ground that the description set out in the introductory paragraphs of the Amended Particulars of Claim is largely uncontroversial and I have relied on those paragraphs in summarising the position. Contentious issues of fact are dealt with as relevant when discussing the issues to which they relate.12.The Rubettes was formed early in 1974. The band‘s first song was ‘Sugar Baby Love’. It was successful. That song was followed by others which had varying degrees of success in the UK and (at least) across the rest of Europe until the late 1970s.13.Mr Williams, Mr Clarke and Mr Richardson were all involved with the Rubettes during that first period of success. Mr Williams is a vocalist, songwriter and musician; Mr Clarke is a bass guitarist; and Mr Richardson is a drummer.14.Mr Williams has been performed under the name ‘the Rubettes’ (or a variation of that name) since the 1970s, save for a period when the band was largely dormant in the early 1980s. Since 1 January 2003 the band of which Mr Williams formed a part was generally called ‘the Rubettes featuring Alan Williams’.15.Mr Clarke was involved with ‘the Rubettes’ and then ‘the Rubettes featuring Alan Williams’ for two periods: first between 1974 and 1988, and subsequently between 1993 and 2018.16.Mr Richardson also performed with ‘the Rubettes’ and then ‘the Rubettes featuring Alan Williams’ for two periods: first between 1974 and 1982, and subsequently between 2000 and 2018.17.Mr Etherington is a keyboard player (among other things). He was not part of the Rubettes during its early existence but has performed with ‘the Rubettes featuring Alan Williams’ since around 2016.18.Between 1974 and early 1976, the Rubettes traded through a company called The Rubettes Limited. The band had at that time six members: Messrs Williams, Clarke and Richardson; Mr Peter Arnesen; Mr Bill Hurd; and Mr Tony Thorpe. Each band member had shares in The Rubettes Limited, as did the band‘s management company. The evidence is that none of the band members took any interest in the running of The Rubettes Limited, that the company ceased trading in around 1977 and was subsequently struck off and dissolved in July 1998.19.Mr Arnesen and Mr Hurd both left the band in late 1975 or early 1976. The remaining band members continued performing as ‘the Rubettes’.20.Rubettes (1976) Limited (the ‘1976 Company’) was incorporated in April 1976. Each remaining band member was allotted one share in the 1976 Company. The 1976 Company carried on a business of providing live music events, music sales and related goods or services using the name ‘the Rubettes’. The band continued to be successful and to tour following the departure of Mr Hurd and Mr Arnesen and the formation of the 1976 Company.21.Mr Thorpe left the band in 1979. He was replaced for a short while, but by 1980 only Mr Williams, Mr Clarke and Mr Richardson remained. The band was less active between around 1981 and sometime in 1983 and did not tour during that period.22.During the mid to late 1980s, and subsequently, a demand developed for bands to perform on ‘Oldies’ or ‘Nostalgia’ tours or at festivals. From 1983, a further band of musicians performed as ‘the Rubettes’. The initial members were Mr Williams and Mr Clarke, together with Mr Alex Bines and Mr Hurd.23.Bands using the name ‘the Rubettes’ (in various iterations) have been involved in Oldies or Nostalgia tours and festivals since 1983. The membership of those bands has shifted over time. The involvement of each of the parties up until 2018 is as set out at paragraphs 13 to 17 above.24.Mr Hurd set up a separate band using the name ‘the Rubettes’ in 1999. Litigation between him and the Claimants commenced in 2000. A settlement agreement was concluded in 2002 (the ‘2002 Settlement Agreement’) under which, as from 31 December 2002, Mr Williams and AWEL would trade as ‘the Rubettes featuring Alan Williams’, while Mr Hurd would trade as ‘the Rubettes featuring Bill Hurd’.25.Mr Williams, Mr Clarke and Mr Richardson have since 2000 performed together as members of the same band (for convenience, ‘the 2000 Band’). Not all of them always appeared at performances and a number of other musicians have appeared with the 2000 Band from time to time, including, for example, a Mr Mark Haley (who played no part in this litigation) and subsequently Mr Etherington.26.It appears that since 2003 the 2000 Band has generally performed under the name ‘the Rubettes featuring Alan Williams’. It is not agreed that this name was always used and the Defendants plead that it was not.27.While no admissions were initially made to this effect, the evidence now shows that throughout the history of the various bands relevant to this trial, all revenue has been paid to a corporate entity rather than to any individual. It was the corporate entity which made the bookings and paid the expenses. Those who performed were paid a fee per performance.28. Since 1983, AWEL has dealt with the business aspects of organising the band‘s appearances, merchandising and related goods and services, including during the period when neither Mr Clarke nor Mr Richardson performed with the band.29.Since 1983, all earnings were paid to AWEL, with the band members (other than Mr Williams, who was remunerated through his share of the profits of AWEL – if any) being paid a fee per performance. AWEL paid any costs or expenses incurred. I should mention for completeness that it was suggested by Mr Clarke that from time to time a small proportion of merchandising revenue was also paid to the performers, but nothing turns on that.30.In the autumn of 2018, Mr Williams confirmed to the other band members that, having previously regularly visited his daughter who was living in Australia, he had received a resident’s permit for Australia and was moving to live there.31.A few months earlier (the precise circumstances are explored in more detail below), there had been discussions between the parties about money and a disagreement between, in particular, Mr Clarke and Mr Williams. On 1 July 2018, Mr Williams wrote in an email to Mr Clarke (‘the 1 July email’):“Due to recent activities undertaken by certain people my position has become untenable and as a result I am disbanding my present band line up as of now and as a result I must inform you that your services will no longer be required.”32.Around 24 October 2018, Mr Clarke applied for the UK TM. The application proceeded to registration on 11 January 2019.33.At some point before 3 March 2019, Mr Clarke, Mr Richardson and Mr Etherington formed a band using the ‘the Rubettes’ name and, in May 2021, Mr Hurd also agreed to perform with that band.