The Best Trademarking of a band name
Music recordings are products, and entertainment is a service, so a name used to identify the source of a song or the musicians who performed it is a trademark.
Trademark rights are created by using a name or symbol associated with the product or service to identify the source of the product or service.
Trademark rights come into existence when a band takes action to name a product (such as a CD, or digital recording available for download on the Internet) or advertises the product, or publicly performs or advertises entertainment services in the name.
Most musicians are aware of copyright. Without copyright protection, other musicians and music companies can claim your songs, profit from them, and even sue you if you own your creation. Many musicians are not aware that a similar disaster can befall a band that does not properly establish and protect the trademark rights of the name they choose.
Band name and logo as trademarks
A trademark is any word, phrase, symbol, word or design used in commerce to identify the origin of goods or services. Music recordings are products, and entertainment is a service, so a name used to identify the source of a song or the musicians who performed it is a trademark. For example, the name "Smashing Pumpkins" is a trademark used to identify sound recordings and musical performances of a particular band. It is also a trademark for posters and shirts featuring that phrase.
Logos are a special case. If the logo is an original work, the artwork may be copyrighted. When it is used to identify a particular band, it can also be protected as a trademark.
How Trademark Rights Are Created
Trademark rights are created by using a name or symbol associated with the product or service to identify the source of the product or service. Merely assigning a name to a band is not enough, even if the name is written on a piece of paper, witnessed, notarized and kept in a safe deposit box. Trademark rights come into existence when a band takes action to name a product (such as a CD, or digital recording available for download on the Internet) or advertises the product, or publicly performs or advertises entertainment services in the name.
Trademark rights can come into existence without registration. Between two bands of the same name, the first to use the name in commerce to identify the source of their musical product or service (such as pasting the name on a CD offered for sale, or in advertising, use for concert performances or flyers by the band) must be the one with trademark rights
Why registration is required?
Since trademark rights are tied to first use, some websites offer to protect band names by listing the name in a band name registry. While this may constitute some evidence of use, it is not a determination of the issue and is not sufficient for trademark protection. Only registration with a state or federal trademark office will establish a prima facie case or legal presumption of trademark ownership.
Registering your band name with our trademark office creates a strong impression that you own the trademark rights to that name With few exceptions, this will usually be all the proof of ownership you need to protect you if another band tries to sue you for claiming their name is confusingly similar. And it will enable you to sue, if necessary, to prevent other bands from using your name or to stop using a name confusingly similar to your band's name.
The stakes are high. A person who is successfully prosecuted for trademark infringement is not ordered to cease use of a sole name. He may also be ordered to destroy or surrender any goods to which the infringing name has been affixed; disburse any profits from the use of the name; and to compensate the trademark owner for damages. In some cases, he may also be ordered to pay punitive damages and the trademark owner's attorney's fees.
Trademark Considerations in Choosing a Name for Your Band
Many musicians only think about aesthetics when choosing a name for their band. You should think about the uniqueness of the name as a brand. One way to start is to search the Internet to see if anyone else is already using the name. Search Amazon, iTunes, Reverb Nation, Myspace, and Facebook. Then do a global search using Google or a comparable search engine. If the name you want to use is already used by a band, you'll need to choose a different name.
It is important to understand that a band's name may infringe another band's trademark, even if it is not identical to the other band's name. A different name may infringe another band's trademark if it is confusingly similar to another band's name. For example, the name "Pearl Jamb" would violate Pearl Jam's trademark rights
Many trademark rules and policies can affect your ability to register and protect your band name. For example, trademarks indicating only geographical origin cannot be registered Names that are merely descriptive of the goods or services offered may also not be registered Misleading, generic, immoral or slanderous names may not be entered. The rule against trademark defamation prohibited The Slant from registering a trademark in its name. According to the USPTO, the name may be considered derogatory to Asians. These are some of the possible reasons why the USPTO may reject a trademark registration.
Of course, most bands don't have the resources to conduct a trademark search or retain the services of a trademark attorney when they first start out. However, it is best to consult a trademark attorney as soon as possible. In addition to the potentially disastrous consequences of an infringement lawsuit, rebuilding your band's name identity can be difficult and expensive if you change the name somewhere down the line, especially if you're unable to stop other bands. Using the name you originally chose.
Who owns the band name
The general rule is that the trademark owner is the person who controls the nature and quality of the product or service. In the absence of a contract, determining who controls the nature and quality of a band's products or services can be complicated, especially if a band works with a producer and/or recording company. There may also be problems within the band.
If a band breaks up, which members have the right to use the former band's name, if any?
Since the band almost always breaks up at some point, it is very likely that a legal dispute will arise between the band members or between the band members and the band's former producer or recording company over the right to use the band name. , unless naming rights are expressly set forth in a written agreement. For this reason, it's a good idea to be clear from the start about ownership of the band name and make it clear in a written contract. If the band operates as a corporation or limited liability company (LLC), this must be addressed in the articles of incorporation or operating agreement. It may be a good idea to have a name for the corporation or company and include specific intellectual property provisions in the operating agreement. This will help the band better deal with producers and recording companies and prevent disputes over the use of members' names.
Registration process
The trademark registration process consists of three basic steps: (1) trademark search; (2) making an application for registration; and (3) the Trademark Office's processing of your application for registration.
Trademark search
When you've completed your initial Internet search and think you've found a name that isn't as confusing as any other band name, look not only at the USPTO's Web site, but also at other databases of actual trademarks. The search is worth it. There are very trademark search firms that will do this for you. Before paying one of these firms, make sure you understand what you're getting Non-attorney firms may prepare a list of similar names, but will not advise you as to whether a name is confusingly similar. Not being a lawyer, they usually won't advise you whether the name you choose is eligible for registration. Finally, in many cases, they will simply search an online database, the USPTO. A trademark attorney who performs this service for clients will search state and other relevant databases, advise you and provide an opinion as to whether the name you have chosen is eligible for registration. Whether it is confusingly searching for similar names to be registered yours
Application for registration
If you are sure that your name is eligible for registration, the next step is to file an application for registration of your trademark. The federal filing fee is $325 for each class of goods or services in which you wish to register a mark ($375 per class if filed electronically by regular mail.) Must be trademarked. Music and live entertainment services. Other categories to consider may include printed items such as apparel (eg, t-shirts) and posters using the band's name. Ultimately, the categories you choose will depend on how you plan to market your band.
You must include a sample of your mark with the application. A specimen is documentary evidence of actual use of your trademark.
If you have not yet started using the name in commerce, you can file an "intent to use" application. You still need to file a description of use with a sample image, but filing a use-to-use application gives you more time to do so.
Examination, publication and protest
After filing your application and sample images, a trademark examiner will review your application for completeness and registrability. If there is a problem, you will get "Office Action". You will then have a set amount of time to resolve the issue and respond. If your application is not rejected at this stage, it will be published in the Official Gazette of the Trademark Office. Anyone who opposes the registration of your mark will have a certain period to object. If objection is raised, the protest process starts. An adversary proceeding is similar to a civil suit, in that each party may plead, seek, and make motions. An opposition proceeding can significantly delay the registration process, sometimes for years.
Issuance of a registration number and certificate
If your application is not rejected at the examination stage, and if it is not successfully contested after publication in the Official Gazette, your marks will be assigned a registration number and you will be issued a registration certificate.
Trademark registration provides protection only in the geographic area where the mark is registered. A mark registered with the USPTO does not protect your trademark rights in other countries. If your band starts touring internationally, or if you start selling your merchandise in other countries, you'll need to register your band name in those countries to protect your trademark rights.
After issuing a registration certificate, it is your responsibility to police it, i.e., monitor the market to ensure that no one is violating it. It is also your responsibility to ensure that it is renewed at an appropriate time.
Should you hire a lawyer?
Although it is possible to register a trademark without an attorney, the USPTO recommends that you use one. There are good reasons for this. A trademark attorney can help you avoid wasting a lot of time and non-refundable filing fees trying to register an ineligible mark. Additionally, if there is even a minor error in your application, it may take months for the USPTO to notify you, and then months for the USPTO to notify you that the problem has been corrected. An attorney familiar with trademark law and trademark office investigation procedures should make the right application the first time.
Trademark protection for your band name is where the old adage, "an ounce of resistance is worth a pound of cure" rings true. This is one of the first things to do after deciding to find a wider audience for your band's music than the neighbors who live next door to your garage.
A mark registered with the USPTO does not protect your trademark rights in other countries. If your band starts touring internationally, or if you start selling your merchandise in other countries, need to register your band name in those countries to protect your trademark rights. An attorney familiar with trademark law and trademark office investigation procedures should make the right application the first time.
