Guess Who lawsuit should come Undun, ex-members say By: Alan Small Posted: 4:26 PM CST Monday, Dec. 18, 2023 Last Modified: 5:10 PM CST Monday, Dec. 18, 2023 Updates

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This article was published 18/12/2023 (663 days ago), so information in it may no longer be current.

The Guess Who and two of its former members, Jim Kale and Garry Peterson, are seeking to dismiss a US$20-million lawsuit launched in October by former bandmates Burton Cummings and Randy Bachman.

Cummings’ and Bachman’s lawsuit is meritless, says a Dec. 15 filing at a Los Angeles courthouse, which calls allegations of false advertising in the lawsuit “a complete farce.”

The filing says it is well known that Bachman and Cummings are no longer part of the Guess Who and the band’s advertising does nothing to imply that they are part of the current lineup.

“The Complaint’s false advertising claims should be dismissed in full because it is facially implausible that The Guess Who’s advertising causes reasonable consumers to think Bachman and Cummings are still in the band,” the filing states.

“The Guess Who’s advertising is truthful and does not say or do anything to imply that Bachman and Cummings are in the band,” Randy Erwin, the Guess Who’s Missouri-based manager says in an emailed statement.

“To the contrary, the Guess Who’s advertising discloses the band’s ‘numerous member changes’ and identifies the ‘most recent and up-to-date version of the band’ with the current members’ names and photos.

Cummings and Bachman did not respond to requests for comment by deadline. Bachman, Kale, Peterson, Bob Ashley and Chad Allan, who died Nov. 21 at age 80, formed Chad Allan and the Reflections in Winnipeg in 1962, which became the Guess Who in 1965.

Allan and Ashley left the group in 1966, the same year Cummings was brought on to be the Guess Who’s lead singer and keyboardist.

The group took off with Cummings fronting the band and it had its most successful years between 1966 and 1971, the year Bachman left the group, when it recorded hits such as American Woman, No Time and Undun.

Cummings left the Guess Who in 1975 and Kale, who played bass, registered the name shortly thereafter.

“There is no dispute that we own ‘the Guess Who’ trademark and are entitled to call the band by that name, as we have for decades,” the statement says.

Kale continued to perform as part of the Guess Who with other performers, often with Peterson, but sometimes with Cummings and Bachman for reunion tours, including the closing ceremonies of the Pan Am Games held in Winnipeg in 1999.

Kale, 80, has retired from performing but Peterson, 78, continues to play drums for the Guess Who, which performs mostly in the United States and has a steady touring schedule planned for the first five months of 2024.

“There is no dispute that we own ‘the Guess Who’ trademark and are entitled to call the band by that name, as we have for decades.”–Randy Erwin, Guess Who manager

The group released an album of new songs, Plein d’Amour, earlier in 2023.

Cummings, 75, who performs with his own band and occasionally with Bachman, 80, as Bachman-Cummings, branded the current iteration of the Guess Who imposters during interviews after their lawsuit was announced.

“These guys on stage now, they had nothing to do with any of (the Guess Who’s success),” Cummings told the Free Press after launching the lawsuit. “They had nothing to do with establishing an international legacy or memory. They had nothing to do with what they are claiming, and to me, I don’t care what side of the fence anybody’s on, that’s wrong.”

The Guess Who filing cites the Truth in Music Advertising Act, a California law, which says it isn’t deceptive for a performing group to market itself using a band name if the group holds the federal trademark or at least one member was previously in the group has the legal right to the name.

Alan.Small@winnipegfreepress.com

X: @AlanDSmall