Guess Who members seek to dismiss lawsuit from Cummings and Bachman

A lawsuit filed by Randy Bachman and Burton Cummings against two of their former bandmates in the Guess Who is being called “a complete farce” by the musicians who are seeking to see it dismissed.

Bassist Jim Kale and drummer Garry Peterson filed a motion earlier this month asking the U.S. district court in California to throw out allegations they’ve infringed on the trademarks of the Winnipeg band.

Both musicians, who are original members of the act, were sued in October by Bachman and Cummings who allege they had assembled a “cover band” to perform and release albums under the Guess Who name.

But lawyers for Kale and Peterson say the pair have been using the name for decades and claim their former bandmates have waited too long to file the trademark suit. They argue the statute of limitations has expired.

None of the allegations have been tested in court.

“Like many other bands from the 1960s that still exist today, the Guess Who’s lineup has changed numerous times over the past six decades,” Kale and Peterson wrote in their motion, filed on Dec. 7.

“Consumers who see an ad for a concert by the Guess Who would not reasonably assume that Bachman and Cummings are performing merely because they were in the band many years ago,” they continued.

The history of the Guess Who is a complicated timeline of name changes and a revolving door of band members.

It began in the early 1960s as Chad Allan and the Reflections, named for the band’s guitarist. That iteration included Bachman, Kale and Peterson, as well as keyboardist Bob Ashley.

By 1965, the band had been rebranded at least twice, with its Canadian label releasing one of the singles to radio as “The Guess Who?” to stoke curiosity among listeners. The name stuck and by the next year, Ashley had left the act and a teenage Cummings had been hired as the lead singer.

On the heels of several successful singles, the relationship between Bachman and Cummings had frayed, leading Bachman to split with the band. By 1975, Kale and Cummings had left too.

The defendants say “shortly thereafter” Kale rejoined with other members of the Guess Who to continue performing, and that either he or Peterson led the band in the years that followed.

In their original suit, Bachman and Cummings say that in 1986 Kale registered the Guess Who as a trademark in the United States without their knowledge or consent.

Bachman and Cummings argue that the Guess Who today is not the band people knew for the hits “American Woman” and “These Eyes,” despite how it’s marketed.

They claim Kale has not performed publicly with the current Guess Who iteration since 2016, while Peterson appears “infrequently.”

They are seeking in excess of US$20 million in damages for false advertising, violation of right of publicity and unfair competition.

In their motion for a dismissal, Kale and Peterson allege that Bachman and Cummings are seeking control of the Guess Who because they’ve found that their solo names “do not have the same recognition and do not garner the same commercial demand as the Guess Who,” at least in the United States.

“Bachman and Cummings have tried to take the Guess Who name for themselves, despite having left the band decades ago and (Kale and Peterson) carrying on the band’s legacy,” the motion says.

The defendants characterize the clash as a recent turn of events.

They say Bachman and Cummings were using the Guess Who name to promote a recent run of U.S. shows until the current band members stepped in to enforce their trademark rights. The motion for dismissal alleges Bachman and Cummings then began “pressuring” the band to license or sell them the trademark, threatening “expensive litigation” if they didn’t.

And yet Bachman and Cummings tell a different story in their original lawsuit, which outlines examples where they say the current lineup implied both of them were involved in this iteration of the band.

In one instance earlier this year, they say Cummings and an associated music publisher sent cease-and-desist notices to Randy Erwin, the current manager of the band based in the United States. The letters objected to the use of Cummings’ image and music containing his vocals in the band’s advertisements posted on the Guess Who’s social media to promote their concerts.

The legal filing says that although the band’s manager responded by saying that “action would be taken, false and misleading statements by the cover band persist today.”

A response from the defendants disputes the claims. At a minimum, they urge the court to dismiss the lawsuit against Kale and Peterson, saying the allegations do not demonstrate that either one of them as individuals did “anything unlawful … in relation to how the band is marketed.”

A hearing is set to take place next month in California.