A federal judge ruled Wednesday (Jan. 31) that a tribute band sued by Earth, Wind & Fire for trademark infringement can continue to try to prove its bold counterargument: That the legendary R&B group abandoned the intellectual property rights to its name.

Faced with a lawsuit for using the name “Earth Wind & Fire Legacy Reunion” at concerts, the smaller act argued last summer that the original group had allowed plenty of other tribute bands to use its name without repercussion — so many, in fact, that it could no longer claim any exclusive legal rights to it.

Lawyers for Earth, Wind & Fire have called that argument meritless and demanded that it be dismissed, but in a decision Wednesday, Judge Federico A. Moreno refused to do so. Though he said Legacy Reunion might ultimately find it “difficult” to prove that “abandonment” argument, he said they had “done enough” to avoid having it tossed out entirely in the early stages of the case.

Earth, Wind & Fire has continued to tour since founder Maurice White died in 2016, led by longtime members Philip Bailey, Ralph Johnson and White’s brother, Verdine White. The band operates under a license from an entity called Earth Wind & Fire IP, a holding company owned by Maurice White’s sons that formally owns the name.

In a March lawsuit, that company accused Legacy Reunion of trying to trick consumers into thinking it was the real Earth Wind & Fire. Though it called itself a “Reunion,” the lawsuit said the tribute band contained only a few “side musicians” who briefly played with Earth, Wind & Fire many years ago.

“Defendants did this to benefit from the commercial magnetism and immense goodwill the public has for plaintiff’s ‘Earth, Wind & Fire’ marks and logos, thereby misleading consumers and selling more tickets at higher prices,” the group’s lawyers wrote.

Tribute acts — groups that exclusively cover the music of a particular band — are legally allowed to operate, and they often adopt names that allude to the original. But they must be clear that they are a tribute band, and they can get into legal hot water if they make it appear that they are affiliated with or endorsed by the original. In 2021, ABBA filed a similar case against a what it called a “parasitic” band called ABBA Mania.

Facing the lawsuit filed by Earth, Wind & Fire, Legacy Reunion filed a response in August that listed out a dozen other tribute acts that allegedly feature “Earth, Wind & Fire” as part of their name. Legacy Reunion argued that since the original band had “taken no action to enforce its purported trademark rights,” it had legally abandoned them.

“Due to the unchecked third-party use of the phrase, [EW&F] has abandoned ‘Earth, Wind & Fire,’ and [the name] has lost its trademark significance,” wrote attorneys for Substantial Music Group, which operates Legacy Reunion.

In a response fired back in September, attorneys for Earth, Wind & Fire said the band had very obviously not abandoned its rights to the name, adding that the “bare allegations” made by Legacy Reunion, combined with just a “handful” of other tribute bands, falls “woefully short” of what they would need to prove.

Wednesday’s decision by Moreno rejected Earth, Wind & Fire’s motion to dismiss the abandonment argument, but it does not mean that Legacy Reunion has evaded the band’s infringement allegations. To the contrary, the smaller group must now actually prove that argument in future proceedings.

An attorney for the Earth, Wind & Fire did not immediately return a request for comment.

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