Commodore, What Can You Learn From Drifters?
By James P. Flynn, Epstein Becker Green
Trademark lawyers eventually learn a hard truth: brands often do not die; instead, they drift.
Sometimes they drift quietly into nostalgia. Sometimes they drift into the hands of the entrepreneurial and well-advised. Other times, they drift along unattended. Of course, sometimes, they drift straight into court.
Few issues in intellectual property law reveal the fault lines between legal formalism and cultural memory as sharply as disputes over legacy brands:
Brands that stand the test of time innovate to stay relevant and build upon the product imagery that first captured customers’ hearts. So-called legacy brands and their associated images include Timberland boots, the Burberry raincoat, Tiffany diamonds, and Levi’s jeans. Even Disney, whose fantasy characters remain central to the customer experience. Each consumer-facing brand expanded its appeal while staying true to its foundational equities. Conservative Burberry got sexy by putting its tartan pattern on bikinis. Tiffany signed Elsa Peretti to design more accessibly priced silver and gold jewelry that was still distinctively elegant. Traditional Disney acquired Pixar’s more modern storytelling. By definition, legacy brands can also survive a spate of bad management, bad economies, even bad luck — but not in perpetuity.
[BigThink, “How one key obsession can build and drive a legacy brand,” October 14, 2025]
When a name outlives its original commercial enterprise, questions inevitably arise: Who owns the identity? Who speaks for the brand? And how much does history matter when measured against trademark registries? It seems like legacy brands have a way of returning, sometimes as beloved revivals, sometimes as legal problems looking for a forum.
There are two disputes that offer a useful comparative lens on how different legal systems confront these questions. One is unfolding now in Europe over the Commodore name, the other was litigated for decades in the United States over the name for The Drifters. In this piece, we revisit Marshak v. Treadwell, in which the author played a role as trial and appellate counsel, in a matter dealing very directly with the notion of a legacy brand. See 23 Entertainment Law Reporter. 47-52 (July 2001). We place that matter alongside today’s COMMODORE name dispute unfolding in Italy. The result is not nostalgia, but instruction: a reminder that brand identity, once untethered from disciplined legal stewardship, will eventually be claimed by someone else—with paperwork.
The Commodore Dispute: Legacy Meets Registration
For those hoping that this would in some sense be a straight music piece, the author hates to disappoint you, but the Commodore dispute in Italy has nothing to do with Lionel Ritchie. That would probably have made it too easy for all of us. Instead, this COMMODORE brand related to computers and technology:
A bit of background for those who can’t remember hardcopy games, tapes, and ten-minute load times: Jack Tramiel founded Commodore in 1958 as a typewriter company that would ultimately become a major force during the 80s computing boom.
It would be 1982 before the Commodore 64 took flight in international markets, and the Guinness Book of World Records would recognize it as the best-selling home computer of all time.
The brand is synonymous with retro gaming….
[McNally, Commodore CIC takes legal action against Italian rival]
In many ways, that COMMODORE brand could thus be seen, at first glance, like a brick house: iconic, solid, structurally sound. “How can she lose with the stuff she use?,” or so the rhetorical question would go. Indeed, “what a winning hand,” one might say. Yet appearances, as trademark lawyers know, can be deceiving. Even a brick house will collapse if the registrational and ownership foundation is neglected.
In December 2025, Commodore International Corporation (“Commodore International” or “CIC”) commenced proceedings in the Italian courts and the European Intellectual Property Office challenging trademarks held by Commodore Industries S.r.l., an Italian entity founded in 2017 that successfully registered the COMMODORE name and related marks in Italy and the EU. Commodore International contends that those registrations conflict with rights traceable to the original Commodore business and should be invalidated to allow the marketing of “authentic licensed products” under the historic brand name. See Tom’s Hardware, “Commodore International challenges rival’s trademarks in escalating brand dispute” (2025). This matter has been described as part of an ongoing, “bitter battle over the ‘true’ representation of the original company.”
The Italian registrant, for its part, emphasizes that its marks were examined and granted by national and EU authorities, were not successfully opposed, and therefore enjoy the presumptive validity accorded to registered EU trademarks. See Tom’s Hardware, “Commodore International challenges rival’s trademarks in escalating brand dispute” (2025).
What is striking about the COMMODORE dispute is that it is not framed primarily as a classic likelihood-of-confusion case. Rather, it is a contest over identity stewardship: whether the emotional and historical gravity of the COMMODORE name can displace later-issued registrations obtained decades after the original company’s collapse. Commodore International appears adamant as to its obligation “to protect its legacy and preserve the community’s trust in the original Commodore name…We recognize and deeply value the passion and dedication of the Commodore community, who have kept the spirit of the brand alive for decades. Our goal is to protect that legacy and to foster a positive, creative environment for all who love Commodore—past, present, and future.” Commodore International even promises hat “[p]arties interested in creating officially licensed Commodore products and experiences will be able to begin the conversation with CIC in the coming weeks, when an official Licensing Pipeline tool launches at commodore.net.”
But the registration and bankruptcy background here is complex, detailed, and, ultimately, leaves Commodore International a bit at sea over trademark rights. After the original Commodore International went bankrupt in the 1990s, rights to its trademarks were sold, abandoned, or otherwise fragmented over decades. Multiple entities have claimed ownership at different times, which leads to:
- Multiple groups asserting rights — e.g., Commodore International (a newly relaunched entity claiming the original marks) vs. an Italian company (Commodore Industries) that registered some European trademarks and uses the name commercially, as seen here.
- Confusing or overlapping registrations — different parties may hold different pieces of the IP portfolio in different jurisdictions or product categories, making global brand control difficult, as one source noted.
This kind of fragmentation is very common with older brands whose original owners disappeared or whose IP lapsed without active enforcement. When more than one party uses the same historic brand: Consumers may get confused about which products are “official” vs. licensed vs. aftermarket; Products with the name might have widely varying quality, harming the perceived value of the brand overall. This is often what legacy brands fear most when unauthorized or low-quality goods carry their names. The current Commodore situation includes Italian-branded tablets, laptops, and games that many in the community view as unrelated to the classic computer legacy, which complicates efforts to “revive” the brand in a respectable way. As the song goes, “Sail on down the line / ‘Bout a half a mile or so / … Time after time I tried/ To hold on to what we got but/….I know it’s a shame/But I’m giving you back your name/…”
Under EU trademark law, that fractured history leaves Commodore International with a difficult argument to win absent provable bad faith, non-use, or invalidity at the time of filing by the Italian registrant. See EUIPO, Invalidity and Cancellation Proceedings Overview. Legacy alone, without current qualifying use or a successful attack on the registration process, rarely suffices. Indeed, from a European trademark perspective, this is uphill terrain. EU trademark law is unapologetically administrative. If one registers first, uses properly, and survives opposition, the law tends to reward diligence rather than nostalgia. Legacy may supply a compelling press narrative, but narrative is not a statutory ground for invalidation. See EUIPO, Invalidity and Cancellation Proceedings Overview. As the Italian registrant has noted, the company and its partners, “for over seven years now, have been legitimately using the brand in compliance with both current laws and market rules.”
In other words, Commodore International now finds itself arguing that history should trump the registry, a position that plays better in common memory than in continental regulation.
The Drifters Litigation: Identity Anchored in Continuity
The U.S. courts confronted a remarkably similar problem—albeit in a different doctrinal posture—in Marshak v. Treadwell, a long-running dispute over the name The Drifters, an American pop and R&B/soul vocal group with well known hits such as Under The Boardwalk, Up on the Roof, On Broadway, Save the Last Dance for Me, Vaya Con Dios, Saturday Night at The Movies, There Goes My Baby, and Please Stay. Though the group seemed to have three distinct “golden eras” in the early 1950s, the 1960s, and the early 1970s, now registered The DRIFTERS as a trademark during that whole period. The Drifters, in terms of membership, “were the least stable of the great vocal groups.” The consistency through that period was George Treadwell, who had purchased the name, from Clyde McPhatter in 1955, as any review of the shifting lineups in The Atlantic Years, 1953 to 1972, shows.
Larry Marshak obtained a federal trademark registration for THE DRIFTERS in the late 1970s and promoted performances under that name. He also initiated suit against a rival Drifters group operated by Faye Treadwell, widow of George Treadwell, the group’s long-time manager. Treadwell counterclaimed that Marshak’s registration had been procured by fraud because it failed to disclose the existence of longstanding rights tied to the original group’s commercial legacy, including ongoing royalty income from recordings. A jury found fraud, and the district court concluded that Marshak’s registration was void and that his use infringed Treadwell’s common-law trademark rights, rejecting, as Forbes noted, “Marshak[‘s] conten[tion] that the band’s trademark lapsed and was his for the taking when the original group stopped touring in 1976.” Marshak v. Treadwell, 58 F. Supp. 2d 551, 565–70, 582-84 (D.N.J. 1999). On appeal, the Third Circuit affirmed, emphasizing that trademark rights can persist where there is continuous commercial exploitation—here, through licensing and royalties—even if public performance activity ebbs and flows. Marshak v. Treadwell, 240 F.3d 184, 198–203 (3d Cir. 2001). Subsequent enforcement proceedings underscored how deeply courts may entrench control over a legacy brand once identity ownership is judicially resolved. See, e.g., post-judgment orders. Further, “the Truth in Music Advertising laws were legislated in 35 of the 50 US states from 2005 to 2020 to stop promoters such as Marshak from assembling new groups of musicians and marketing them as well-known groups such as the Drifters,” as one source noted.
The notion and idea of legacy being more than simply have the same performers is captured perhaps in a sports analogy used at the Marshak v. Treadwell trial:
[Treadwell’s Counsel] Every time you see an advertisement from Mr. Marshak’s group that implies he has a direct lineage, you should think about that [i.e., the direct line the Treadwell group had that Marshak’s didn’t].
Why…? Well I think it is like a baseball team. Mr. Marshak could have his own baseball team if he wants. That’s fine. But Mr. Marshak can’t today have a baseball team even with a bunch of free agents who used to play on the Yankees and call his team the “Yankees” and talk about the great heritage of Babe Ruth or Lou Gehrig or anyone else. The only ones who can do that today and market that today, legitimately are today’s [1998] Yankees, Paul O’Neil, David Cone, and people like that.
Is David Cone Whitey Ford? No.
Is Paul O’Neil Lou Gehrig? No.
But there is a direct lineage.
In this case the direct lineage—and we still have Johnny Moore[, lead singer on classic recording of Under the Boardwalk]. The direct lineage is George and Fayrene Treadwell up to the present. We are going to show that Mr. Marshak has attempted to misuse the mark to create an association or to imply an association that he doesn’t have and never had.
[Trial Transcript, Openings 79-80, Marshak v. Treadwell]
In my opening I showed you some statements from Mr. Marshak’s lead singer, who talked about the music making a difference and who talked about that music as pure and simple. Now, in the opening I drew an analogy to a baseball team and said there has been a direct lineage…I want to remind you of that analogy because I think that analogy still works
[Trial Transcript, Closings 782-83, Marshak v. Treadwell]
The jury, trial court, and then Third Circuit bought that argument. The courts also noted that trademark abandonment is not proven by nostalgia fatigue. Where goodwill continues to be exploited, even quietly, the law will not declare the brand dead simply because someone else arrived with a cleaner registration file. Marshak, 240 F.3d at 198–203.
That holding mattered then. It matters now. And it remains one of the reasons revival-brand litigation in the U.S. is never as simple as “who filed first.”
Comparative Themes: Commodore and Marshak
Three important lessons emerge from the Drifters’ history in the Marshak litigation as applied to what is unfolding with Commodore.
1. Legacy Is Not Self-Executing
Both disputes demonstrate that historical resonance, standing alone, does not create enforceable rights. In Marshak, legacy mattered only because it was tethered to continuous commercial exploitation recognized by U.S. common law. Marshak, 240 F.3d at 198–99. In the Commodore matter, legacy collides with a European system that prioritizes registration and formal use over historical narrative. See EUIPO overview, supra.
2. Fragmentation Creates Opportunity and Risk
In both cases, decades of fragmented ownership and inconsistent stewardship created openings for later actors to claim formal rights. Because of that fragmentation:
- Trademark validity becomes disputed. Commodore International says some trademarks held by the Italian company were “improperly granted” and is seeking their invalidation in Italian court and potentially at EUIPO.
- Court systems differ by country. Italian procedures and EU trademark law can make disputes lengthy, costly, and unpredictable, especially if there are overlapping registrations.
- Trademark holders may have to prove continuous use — in places like the EU, rights can weaken if a mark hasn’t been used for several years, creating opportunities for others to file registrations or for rivals to challenge marks. This is a known issue in European trademark law and comes up in disputes like this.
The Drifters litigation shows how U.S. courts may unwind those claims if fraud or superior common-law rights are proven. Marshak, 58 F. Supp. 2d at 568–70. The Commodore dispute illustrates how, in Europe, fragmentation may instead reward the party that successfully navigates the registration system first.
The contrast between Commodore and Marshak is not merely factual; it is philosophical. Common-law rights, residual goodwill, royalty streams, and consumer association all matter. Fraud on the PTO remains the original sin under US law. See Marshak, 58 F. Supp. 2d at 568–70; see also Herb Reed Enterprises, LLC v. Florida Entm’t Mgmt.,736 F.3d 1239, 1248 (9th Cir. 2013) (continued record royalties meant “that the record supports the district court’s determination that HRE did not abandon ‘The Platters’ mark”); accord Robi v. Reed, 173 F.3d 736 (9th Cir. 1999)(“when Paul Robi left the group, he took no rights to the service mark with him. Rather, the mark remained with the original group. Paul Robi therefore had nothing to assign to Martha Robi.”); Bell v. Streetwise Records, 640 F. Supp. 575, 580 (D. Mass. 1986)(priority of trademark rights established “by bona fide usage… consistent with a ‘present plan of commercial exploitation.’”). EU trademark law remains skeptical of such historical storytelling. Registration, use, and procedural vigilance dominate. If legacy owners fail to protect the mark contemporaneously, later registrants are not presumed villains; they are presumed compliant.
Neither system is wrong. But each punishes a different kind of neglect.
3. Identity Versus Administration
Perhaps the sharpest contrast lies here. U.S. trademark law remains willing to privilege identity continuity, i.e. that persistence of goodwill in the minds of consumers, over administrative formalities. See also Robi, 173 F.3d at 739–41. EU law, by contrast, places heavier weight on the orderly administration of registered rights, even where the equities feel unsettled.
U.S. and EU Strategies for Legacy Brands
Trademark law has little patience for nostalgia untethered from use. As Marshak made clear, goodwill need not continuously perform on Broadway to survive; sometimes it lives quietly up on the roof, sustained by royalties and licensing long after the touring stops. The mistake is assuming that because the lights are dim, the house is empty. As Commodore is now discovering in Italy, a legacy brand may look like a brick house, but without disciplined legal stewardship, someone else will eventually move in—and start charging admission.
Legacy-brand disputes often arrive wrapped in the language of authenticity. Courts listen politely—and then ask for evidence. In Marshak, authenticity mattered only because it aligned with provable commercial continuity. In Commodore, authenticity will matter only if it can be translated into recognized grounds for invalidation under Italian or EU law. Romance alone will not void a registration.
So, what are the practical steps and warnings we can take from these matters:
1. Do Not Assume Nostalgia Equals Rights–In both jurisdictions, sentiment is not evidence. Legacy brand owners must document continuous qualifying use, licensing activity, or enforceable goodwill. Otherwise, they risk losing the race to registration. Put more starkly, legacy brands require governance, not reverence: If a brand matters, someone must tend it. Dormancy without strategy is not patience; it is surrender. Still, at least in the United States, legacy brands often survive on nothing more than this magic moment of memory (and recording revenue) just short of abandonment. Use that fleeting moment when goodwill still exists but legal control is may be slipping to solidify one’s position and stop the slide.
2. U.S.: Invest in Common-Law Proof Early–In the United States, evidence of royalties, licensing agreements, historical promotion, and consumer association can defeat abandonment and even void a registration for fraud. Marshak, 240 F.3d at 198–203. Practitioners should build that record long before litigation. Royalty streams, licensing agreements, controlled exploitation are not afterthoughts. They are survival tools. Marshak, 240 F.3d at 198–203. What mattered was not the spotlight, but what continued under the boardwalk, that somewhat hidden but undeniable and documented continuing commercial exploitation.
3. EU: Registration Strategy Is Paramount–In Europe, failure to register, or to oppose promptly, can be fatal. Legacy brand owners should prioritize defensive filings, monitoring, and timely invalidity actions grounded in bad faith or non-use rather than historical identity alone. In Europe, ownership is rarely decided solely on Broadway (or Piccadilly or the Piazza della Scala); it is decided backstage, in contracts and registries.”
4. Fragmentation Demands Governance–Legacy brands without clear ownership structures invite opportunistic claims. Whether in New Jersey or Milan, courts are less sympathetic when decades of inattention create uncertainty that third parties exploit.
5. Authenticity Is a Business Argument, and the Law Requires Proof: Courts may acknowledge authenticity rhetorically, but outcomes turn on statutory criteria: fraud, abandonment, use, and validity. The lesson of both Commodore and Marshak is that brand identity must be legally curated, not merely remembered. Nostalgia is a market force, not a legal doctrine. It sells products. It does not substitute for use, validity, or truthfulness at the trademark office.
So, looking at Marshak and Commodore, the settings differ. The doctrinal frameworks differ. The lesson, however, remains stubbornly the same.
Trademarks are territorial. Rights in Italy or EU might be distinct from rights in the U.S., UK, or Asia. This means a revived brand might be able to operate in one region but blocked in another due to local registrations. This complicates licensing, product rollouts, and global marketing. Older brands like Commodore are tied to nostalgic communities, but “community” sentiment can diverge from legal ownership. Fans often care about “authenticity” and “history” more than current trademark documentation. Disputes on such issues, where different groups claim legitimacy, can fracture such “communities” and harm brand revival efforts. Decisions made purely for legal defensibility (e.g., registering marks broadly) may not align with what such enthusiasts see as “true” to the brand.
Legacy brands rarely disappear all at once. They fade. They drift. They linger in the background, waiting for someone to decide whether the music is over—or merely quieter. The legal battles over Commodore trademarks in Italy highlight broader problems for legacy brands — fragmented ownership, overlapping registrations, costly litigation, consumer confusion, and divergent geographic rights. These issues make it difficult for any one party to revitalize a historic brand without navigating complex legal, commercial, and community hurdles.
The law will not decide that question based on sentiment. It will decide it based on who kept the lights on, who collected the royalties, and who bothered to lock the door. So, keep the magic going and don’t ever skip a beat, and, like the Drifters sang, …
Let the music play
Just a little longer
Just a little longer…
Make the music play
Keep this magic going
Keep those trumpets blowing …
Don’t ever skip a beat for
She may slip away…