Trademarking the Identify of a Band

Most musicians know about copyrights. Without the need of copyright protection, other musicians and audio organizations could possibly assert your songs as their possess, reap revenue from them, and even sue you if you perform your own compositions. A lot of musicians are not aware that a very similar calamity can befall a band that does not effectively build and safeguard trademark legal rights in the title it chooses.

Band names and logos as trademarks

A trademark is any term, phrase, image, seem or style and design that is made use of in commerce to recognize the resource of merchandise or services. New music recordings are products, and entertainment is a service, so a identify that is utilized to determine the supply of a music or the musicians who accomplish it is a trademark. For instance, the identify, “Smashing Pumpkins” is a trademark that is used to discover a particular band’s seem recordings and musical performances. It is also a trademark for posters and shirts exhibiting that phrase.

Copyright legislation does not protect names, titles or brief phrases. Registering a copyright for a assortment of songs with the band’s identify on the include may secure the band’s legal rights of authorship in the tunes, but it will not secure the band’s identify. For that, trademark registration is desired.

Logos are a specific situation. If a symbol is an unique perform, then the artwork might be copyrighted. When it is employed to identify a specific band, then it may well also be shielded as a trademark.

How trademark legal rights are produced

Trademark legal rights are designed by applying a name or symbol in link with goods or companies to detect the supply of the products or providers. Simply selecting on a title for a band is not adequate, even if the identify is prepared down on a piece of paper, witnessed, notarized, and retained in a risk-free deposit box. Trademark rights arrive into becoming only when the band normally takes the further action of placing the name on a product or service (this sort of as a CD, or a electronic recording that is built available for down load on the Net) or an advertisement for the merchandise, or publicly performs or advertises its amusement services beneath the title.

Trademark rights can come into existence without the need of registration. As among two bands with the very same name, the first to use the identify in commerce to determine the supply of their musical solutions or solutions (these as affixing the name to a CD that is provided for sale, or making use of the identify in an ad or flyer for a concert effectiveness by the band) will be the one particular with trademark rights.

Why registration is significant

Because trademark rights are linked to 1st use, some web sites offer to guard a band’s name by basically listing the name in a band name registry. Whilst this can deliver some evidence of use, it is not determinative of the situation, and it is not enough for trademark defense. Only registration with a point out or federal trademark office environment will create a prima facie case or a lawful presumption of trademark ownership.

Registering your band name with the U.S. Trademark Business makes a strong presumption that you have the trademark legal rights in that identify. Subject to some exceptions, it ordinarily will be all the proof of ownership you have to have for your protection if another band tries to sue you for working with a name that it statements is confusingly equivalent to theirs. And it will enable you to file fit, if important, to reduce other bands from applying your name, or a identify that is confusingly comparable to your band’s name.

The stakes are high. Currently being requested to cease employing a title is not the only issue that can happen to a individual who is productively sued for trademark infringement. He may well also be ordered to destroy or surrender any merchandise that have the infringing title affixed to them to disgorge any gains that have been produced through the use of the title and to compensate the trademark owner for damages. In some cases, he may well also be ordered to pay back punitive damages and the trademark owner’s legal professional service fees.

Trademark factors in picking a name for your band

Lots of musicians assume only about aesthetics when picking out a title for their band. You should also imagine about the distinctiveness of the identify as a model. One way to commence to do this is by browsing the Net to see if anyone else is already employing the title. Look for Amazon, iTunes, ReverbNation, MySpace, and Facebook. Then do a world lookup using Google or a similar search engine. If a band is presently working with the name you want to use, you should really choose a diverse name.

It is important to realize that a band name may possibly infringe a further band’s trademark even if it is not identical to the other band’s name. A diverse name can infringe yet another band’s trademark if it is confusingly very similar to the other band’s identify. The identify “Pearl Jamb,” for instance, would infringe Pearl Jam’s trademark legal rights.

A amount of trademark policies and ideas can effect your capability to register and defend your band’s identify. For example, trademarks that basically indicate geographic origin can’t be registered. Names that are merely descriptive of the merchandise or solutions provided also can’t be registered. Misleading, generic, immoral or scandalous names are not able to be registered. The rule in opposition to disparaging logos prevented The Slant from registering a trademark in their name. In accordance to the USPTO, the identify could be construed as disparaging Asian people. These are just a couple of the attainable factors the USPTO could reject a trademark registration.

Of study course, most bands do not have the resources to perform a trademark lookup or retain a trademark attorney’s companies when they are initial starting out. It is a great plan to consult with with a trademark legal professional as early as attainable, even though. In addition to the most likely devastating consequences of an infringement lawsuit, it can be challenging and expensive to re-make your band’s name recognition if you conclude up having to improve the title somewhere down the line, specifically if you are not able to prevent other bands from using the name you originally selected.

Who owns a band’s name

The standard rule is that the proprietor of a trademark is the particular person who controls the nature and excellent of the products or expert services. In the absence of an settlement, analyzing who controls the character and top quality of a band’s products or services can be challenging, notably if a band operates with a producer and/or a recording company. There can also be problems within the band by itself. If a band breaks up, which members, if any, have the suitable to use the former band’s name?

Due to the fact bands practically generally split up at some level, it is really possible that a legal dispute more than the ideal to use the band’s identify will arise amongst users of the band, or amongst customers of the band and the band’s previous producer or recording business, until legal rights to the name are evidently laid out in a composed arrangement. For this rationale, it is a good thought to get distinct on possession of the band’s title from the outset, and spell it out in a composed arrangement. If the band is functioning as a corporation or a limited legal responsibility firm (LLC), it really should be dealt with in the posts of incorporation or the functioning arrangement. It can be a excellent thought for the company or the business to individual the identify, and to include specific mental residence provisions in the working settlement. This will set the band in a greater position in dealings with producers and recording providers, and will forestall disputes around departing members’ use of the name.

The registration course of action

There are a few primary steps in the trademark registration system: (1) a trademark search (2) applying for registration and (3) Trademark Business processing of your software for registration.

Trademark research

After you have done your preliminary search of the Internet and feel you have uncovered a title that is not confusingly identical to a different band’s identify, it is recommended to do an genuine trademark lookup, not only of the USPTO’s website site, but of other databases, way too. There are trademark search corporations who will do this for you. In advance of shelling out one of these firms, while, make sure you fully grasp what you are finding. Non-attorney companies could possibly generate a list of similar names, but will not advise you about whether a identify is confusingly identical or not. Not being lawyers, they commonly will not suggest you about irrespective of whether the name you’ve picked is qualified for registration or not. Lastly, in lots of scenarios, they will only perform a research of a one on the net database, the USPTO’s. A trademark legal professional who performs this assistance for consumers will lookup state and other pertinent databases, will recommend you about regardless of whether the kind of identify you’ve selected is qualified for registration, and will give an viewpoint about irrespective of whether any similar names his lookup uncovers are as well confusingly equivalent to yours to be registered.

Application for registration

If you are self-assured that your identify is qualified for registration, the upcoming phase is to file an software for registration of your trademark. The federal submitting rate is $325 for just about every classification of merchandise or services in which you desire to sign-up a mark ($375 for every class if submitting by typical mail as an alternative of electronically.) At a bare minimum, a band identify ought to be trademarked in the classes of recorded music and reside entertainment solutions. Other groups to contemplate could possibly incorporate clothing making use of the band’s identify (e.g., T-shirts), and printed products this kind of as posters. Ultimately, the categories you pick out will depend on how you approach to market place your band.

You will need to incorporate a specimen of your mark alongside with the software. A specimen is documentary proof of your genuine use of the trademark.

If you have not yet started to use the name in commerce, you can file an “intent to use” application. You will continue to have to file a assertion of use, alongside with a specimen picture, at some position, but filing an intent-to-use application presents you a lot more time to do it.

Evaluation, publication and opposition

Right after submitting your application and specimen illustrations or photos, a trademark examiner will assessment your application for completeness and eligibility for registration. If there is a trouble, you will receive an “place of work motion.” You will then have a specified period of time in which to proper the challenge and react. If your application is not rejected at this stage, it will be released in the Trademark Office’s Formal Gazette. Any one opposing registration of your mark will then have a specified period of time in which to object. If an objection is submitted, an opposition continuing is commenced. An opposition proceeding is very similar to a civil lawsuit, in that just about every social gathering data files pleadings, conducts discovery, and may possibly make motions. An opposition continuing can hold off the registration method substantially, from time to time for many years.

Issuance of a registration selection and certificate

If your software is not turned down at the examination phase, and if it is not efficiently opposed following publication in the Official Gazette, then your mark will be assigned a registration range and you will be issued a registration certification.

Trademark registration only offers security in the geographic region in which the mark is registered. A mark that is registered with the USPTO does not guard your trademark legal rights in other international locations. If your band begins to tour internationally, or if you start marketing your wares in other nations, you will need to have to sign-up your band’s title in all those countries to defend your trademark legal rights there.

Immediately after a registration certificate difficulties, it is your duty to police it, i.e., observe the market to make sure that no on is infringing it. It is also your responsibility to be certain that it is renewed at the appropriate situations.

Ought to you hire an attorney?

Although it is possible to sign-up a trademark devoid of an attorney, the USPTO suggests that you use 1. There are fantastic reasons for that. A trademark lawyer can assist you steer clear of squandering a good deal of time and non-refundable filing charges striving to sign up an ineligible mark. Also, if your software contains even a one insignificant miscalculation, it can take many months for the USPTO to permit you know, and it can get a lot of a lot more months following that for the USPTO to allow you know if the difficulty has been corrected. An attorney acquainted with trademark legal guidelines and the Trademark Office’s inspecting strategies really should get the application appropriate the initially time.

Trademark security for your band’s name is a single place where the outdated adage, “An ounce of prevention is well worth a pound of get rid of” is real. It is a person of the to start with issues you ought to do once you make the decision to seek out a wider audience for your band’s new music than the neighbors dwelling following to your garage.

This post does not represent authorized advice. It is only history discussion about trademark difficulties. If you have any thoughts or considerations, it is strongly suggested that you contact a lawyer.

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