On May 10 a trial will start in a district court in Los Angeles. A jury will decide whether Robert Plant and Jimmy Page of Led Zeppelin copied the opening chords of their classic song “Stairway to Heaven” from “Taurus” of Spirit. Judge Klausner holds that the songs are similar enough to allow the case of copyright infringement to be tried.
The composer of “Taurus”, Randy Wolfe, died in 1997 and the lawsuit has been filed by a trustee of the estate. It is argued that Plant and Page were inspired by the song on a joint Led Zeppelin and Spirit tour in 1968 and 1969.
The defense is likely to be based upon a claim that the chord progressions have been used by composers well before “Taurus” was written in 1967, as well as argumentation that there in fact is an overall difference between the two songs. Personally, I think there may be some merit to this, see (and listen) for instance https://www.youtube.com/watch?v=JcYeLRI76No.
I also reflect on the rather strange fact that “Stairway to Heaven” was written in 1971 and that it actually is possible to wait 45 years to file a copyright infringement claim.
There are several examples in different legislations and in doctrine to the fact that if you are bound by your passive behavior. For instance, sometimes in civil law a party that does not speak up within reasonable time will be held to have accepted certain conditions, whether or not he or she agrees to those conditions.
For me, the rule of passivity frequently comes up in trademark conflict discussions. Article 54.1 of the EU Trademark Directive states that acquiescence or passivity limits your ability as a trademark owner to apply for invalidity or to oppose a later trademark.
For this rule to apply, the following needs to be fulfilled:
- The younger mark has been used in the territory where the older trademark is protected.
- The trademark has been used in more than five successive years in the relevant territory.
- The owner of the older trademark has been aware of the use of the younger mark for more than five years.
- The owner of the older trademark has been passive and not acted against the use of the younger mark.
- The younger mark was not applied for in bad faith.
Here, it should be noted that the holder of the later trademark has the burden of evidence to the first four bullet points above, whereas the holder of the older right has the burden of evidence to the last bullet point.
A period of five successive years is stated as a relevant period of time. I think this period is generous enough for the owner of the older trademark to evaluate the situation from different perspectives and to prepare and file a claim. There is really no just reason why a right holder should be allowed to wait around for decades before deciding to notify a good faith party that they have been committing infringement all that time.
Personally, I feel for Jimmy Page and Robert Plant and think that there is a moral right in the old Italian proverb; “silence means consent”.
Kristina Fredlund, European Trademark Attorney
