BAND NAME OR BRAND NAME?
PROTECTING THE RIGHTS TO YOUR GROUP’S NAME
One of the questions that I am asked most often by bands in the early stages of their careers is “how can we make sure we own our name? Can’t we “copyright” it or something so no one else can use it?”
Well, the answer is “yes” and “no” (great, spoken like a true lawyer!); while there are many things your band can do to protect their interest in their name, there is nothing that can guarantee with certainty that they will never have a conflict with another band or entity with the same or similar name. The reason for this is that in the United States, rights in a name are derived from use of that name, not from registration of the name (conversely, in many foreign countries rights are controlled by first registration rather than first use). The “registration myth” is one of the most common misconceptions that I see among bands. However, simply by using your name first, you have certain priority rights to the use of that name over a later user with the same or similar name, at least in the geographic area in which your band is known.
This does not mean that you should not register your band’s name. There are certain very important additional rights that are conferred by Federal service mark or trademark registration, and many states have similar registration procedures and protections. One of the prerequisites to Federal registration is that the name be used in interstate commerce. This is fairly easy to do; simply playing an out of state show, or advertising an in-state show in another state, or selling your music or merchandise across state lines is sufficient. Another prerequisite is that the name be unique, at least to the goods or services for which it will be used. When the U.S. Patent and Trademark office receives an application, they search their records of current and pending registrations to look for conflicts. The standard for determining a conflict is the “likelihood of confusion” by consumers as to what product or service they are purchasing. Registrations are classified by use, using a standardized international classification system, and each classification must be listed separately, although they can be filed in a single application. For most bands that perform, record, and sell music and related merchandise, this requires registration under at least three separate classification codes.
The USPTO searches only their own records, and it is important that you do a diligent search to determine, as best you can, whether someone else is using your name. A good place to start is with a through internet search, and a search of USPTO registrations, which can be done online for free. There are several search companies that will do more comprehensive searches, for a fee, and it is advisable to use one of these services before you spend too much effort establishing a following and reputation with your name.
Be aware that this is a very complicated area of the law and you should seek the advice of an attorney before dealing with any issues related to your group name.
Thomas Andrew Player, JD, MBA
Player Entertainment Law
Disclaimer: This column is intended to give general information only, and should not be considered legal advice. Many situations or circumstances may appear similar, but in fact differ in ways that are legally significant. Always consult with an attorney about your specific circumstances. Thomas Player, Player Entertainment Law, and the publisher assume no responsibility for actions taken by readers based on information provided in this article.