Brooklyn Academy of Music Threatens The Creator of #BAM

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So, I get this email today from Brooklyn Academy of Music legal team trying to shake me down from withdrawing my application to trademark #BAM: Black American Music. I’m shocked and appalled for several reasons.

According to the letter above, we presented #BAM at BAM two years ago. We were in talks for years before that trying to put that gig together until Danny Kapilian stepped in and made it happen so beautifully. Thanks, Danny. It was a joyous and momentous occasion outdoors at the MetroTech in Brooklyn. If you all had a problem with it, why didn’t you come after me then? You were full aware that I had been using it for years, only now you conveniently take issue with it.

You attempting to get me to abandon my mission to save Black music is antithetical to your edict as an arts administration. You are supposed to be assisting artists like myself and helping the community, not engaging in legal battles against them and trying to stand in the way of their progress. Kudos to your “diverse” executive staff, by the way…

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How does my trademark infringe on you? At no point in the five plus years of me using #BAM has anyone confused the Black American Music movement with your organization. We are in two entirely different lanes. Clearly your trademark legal staff doesn’t understand how this works. I don’t have to withdraw my application or prove its validity because you ask. I’ve already received the trademark. It is you who has the burden of proof that #BAM is infringing on your trademark, and that I’m interfering with your ability to make money, and that there’s confusion in the marketplace, which we know you had no issue with two years ago when you booked me to present #BAM for a gig.

Also, we’re in two different classifications:

#BAM 
Black American Music

Goods and Services Classification: IC 009.

US 021 023 026 036 038

G&S: Audio and video recordings featuring music and artistic performance.
BAM
(i.e. Brooklyn Academy of Music)
Goods and Services Classification: IC 041
US 100 101 107
G&S: Live performances by musical groups featuring orchestral, jazz, rock, and pop music; live dance performances; live operas, dramatic and musical stage plays; continuing entertainment exhibitions in the nature of film; providing facilities for art exhibitions. First use: 1972
While similar classifications, they’re not identical.
bam
Also, my trademark is #BAM: Black American Music attached to my logo. Our logos are not the same. Yours is three, simple, mediocre, white initials on top of a black background. How apropos!
This is my logo. No one has, nor would ever be likely to confuse the two.
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Here are The Polaroid Factors:
  • Strength of plaintiff’s mark
  • Degree of similarity between the two marks
  • the proximity of goods and services of the parties
  • the likelihood that the plaintiff will bridge the gap between the products
  • evidence of actual confusion
  • defendant’s intent in adopting the mark
  • the quality of the defendants products
  • sophistication of the relevant confusion

    The factors are to be balanced: no one factor is determinative.
There are 492 listings for “BAM” on the Patent and Trademark database. Why you coming after little ole me? You’re Goliath and I’m David. I will not be intimidated. And, again, my application has already been approved. I don’t have to withdraw my trademark because you send me an email beckoning me do so. How prejudiced and privileged of you to ask, but sorry, I don’t take requests. You have the burden of proof. You also have to convince three federal judges to substantiate your claim of confusion.
The ball’s in your court… #mfcomn
#BAM
-Nicholas Payton aka The Creator of #BAM
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