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Machine Head counter Duce lawsuit

Legal papers call for ex-bassist's action to be dismissed

Machine Head have responded to the lawsuit brought against them by sacked bassist Adam Duce.

He launched action in January, claiming he was owed at last $1.8m and frontman Robb Flynn had damaged his reputation by saying in a blog: "We may have fired Adam, but Adam quit well over a decade ago – he just never bothered to tell anyone."

But the band have argued through their attorney that his case should be dismissed for a string of technical reasons.

They say Duce listed his replacement, Jared MacEachern, and their new record label, Nuclear Blast, in his papers – but he's levelled unconvincing charges against them.

They say he's also claimed breach of trademark, despite admitting he has no rights to the band name or logo.

The band motion, filed by lawyer Dawn Coulson, says: "Plaintiff, a former partner to the Machine Head partnership, now sues the Band and the other Defendants for federal trademark infringement, alleging that the Band and the other Defendants have used 'a mark identical to MH's federally registered mark without Plaintiff's required consent, for and in connection with Defendants' musical recordings, live shows put on by the Band, and with merchandise including but not limited to clothing and headwear.'

"These allegations fail, however, because Plaintiff is not the registrant of the Machine Head trademarks — the Band is. Plaintiff admits as much in the Complaint.

"In the Complaint, only three of Plaintiff's claims are alleged against MacEachern: trademark infringement, negligence and unfair competition. All fail and should be dismissed.

"In the Complaint, Plaintiff likewise alleges trademark infringement, negligence and unfair competition against Nuclear Blast, the Band's post-expulsion record label. Nuclear Blast is only alleged to have 'entered into a new record contract with' the Band sometime 'after the expulsion of Plaintiff.' The allegation that 'On information and belief, Nuclear Blast supported and aided the Band members to expel Plaintiff from the Band' does not suffice.

"No duty, breach, causation or damages proximately caused by Nuclear Blast or can be alleged against Nuclear Blast."

A hearing is scheduled for June 5 at the US District Court in San Francisco.

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