The judge found that under the contract:
"Each party shall retain exclusive ownership of any artwork created by that party and not previously utilized on MISFITS albums, merchandise or advertising.' The provision also grants the 'non-exclusive right to conduct merchandising and to exploit other rights relating to the use and exploitation of the name MISFITS.' The provision ends by stating that '[Only] and Danzig will each retain 100% of what each earns from the exploitation of merchandising rights and neither [Only] nor [Danzig] has any obligation to account to the other for any revenues derived from the exploitation of merchandising or any other rights.'
Deeming the allegations in the Complaint as true, the Court finds no alleged facts that constitute a breach of the merchandising provision. The Complaint expressly alleges that the designs at issue are co-owned by [Danzig] and [Only]. As to co-owned designs, the provision contemplates that [Only] has a non-exclusive right to merchandise products and otherwise exploit the designs. The provision also allows [Only] to retain 100% of earnings from such exploitation. The terms of the provision do not address any obligation regarding trademark registration or negotiations with individual retail merchandisers as to licensing. Moreover, in reviewing the other provisions contained in the 1994 Agreement, the Court also finds no other terms that govern the parties' conduct as it pertains to trademarking and licensing."
The original lawsuit accused Only, bassist for the Misfits, of not getting Danzig's approval of Misfits merchandise, which Danzig alleged was part of a settlement agreement between the two. Danzig also accused Only of actively telling distributors to not work with Danzig, of cutting Danzig out of Misfits related profits and of misappropriating the Misfits trademark.