I want to use the name of a fairly well-known song/album from the 70s as the name of blog I'm creating. I have searched the trademark database using TESS and found nothing. Is it okay to use? I do plan to credit the artist on the blog. The song was recorded in the U.S. but I'm in Canada.
This is not a definitive legal answer - if you want something you can really rely on, you should go find an attorney and pay for an official legal opinion.
My general explanation of the law in this area is: In general, you can't copyright a title, be it of an album or of a song. As for trademark issues, the important thing there is that you no confuse the public as to the origin of your product, or otherwise free-ride off of the goodwill of the markholder. Searching TESS is not going to give you a definitive answer as to whether you're looking at a trademarked term or not. TESS only searches federal *registered* trademarks and applications. There are also common law and state trademarks that you have to take into account.
Probably. Song titles can't be copyrighted, so you are clear on that basis, although a title may be protectable through litigation if the artist can show that it has achieved "secondary meaning" — in other words, show that consumers have come to exclusively associate that title with the artist or entity that originated the title. The general prohibition on registering titles does not apply where there is a series of works involved. For example, singer Meat Loaf owns a federal trademark registration for the mark BAT OUT OF HELL, which he has used as the title of a three-album series.
If the title of the song or album happens to be the name of the band, and the band has registered their name as a trademark, then using the name could be a problem for you, depending on how common it is (e.g., if "Bliss" or "Please" was the name of your blog, it's unlikely the band would be able to stop you from using it based on any trademark registration). Since you have already apparently searched the trademark database and their are no live marks in the name or song title you want to use, you are probably in the clear.
Note that I say "probably" because I don't know the song title or how famous it is, or what attendant rights might be associated with it. If you are in doubt, go see an IP lawyer and tell him the specifics -- it should be a fairly simple analysis.
If you searched the exact name and found nothing, there still may be a sound alike and/or look alike trademark which you may be infringing, thus your search is not conclusive. More importantly, you should carry the search in Canada, not in the USA, since you are in Canada and USA law does not apply there.
Assuming that truly there is no trademark, then you are in the clear, as , as my colleagues said, names and titles are not copyrightable.
I am not familiar with Canadian law, but you state that you are writing a blog, meaning an opinion piece, thus fair use doctrine put you in the clear, at least in the USA.
The USPTO generally does not allow registrations of the titles of single artistic works, so you'll find that even famous films, for example, often do not appear in the TESS database. But TESS isn't the be all and end all of trademark protection; unlike in the copyright context, you don't need to have registered a trademark to sue for infringement (or dilution, which is another topic altogether.) Thus, you can bet that if you tried to start a blog called "Bridget Jones's Diary," whatever movie studio owns the rights to the film would come after you.
With that said, a single song title that has not been turned into a franchise is a very tough sell for a trademark infringement plaintiff, especially if there are many other works by that title or the title is a fairly commonplace phrase. That doesn't mean musical artists (or their labels) don't make a stink about individuals or companies using song titles for other purposes; recently, Ke$ha sent a cease-and-desist letter over the use of the phrase "Tik Tok" (her most popular song) as the name of an iPod Nano wristband. You can read more about the dispute on my blog: http://lawoffashion.com/blog/story/05/10/2011/53. My post discusses the legal standard in situations like this (of course, you'll need to consult an attorney to analyze the specific facts in your situation.) At the end of the day, you might very well win a trademark case against the owner of the song whose title you're using, but ask yourself if you want the hassle and expense. There is no surefire way to gauge the likelihood that you will be threatened or sued, but perhaps poke around on the Internet to see if the band in question, or their label or publisher, or other entities associated with the song, seem to be especially litigious.
In addition, there may be a workaround (of sorts). I agree with the views outlined by my colleagues above, but if you cannot definitively confirm third party rights to the proposed title, it wouldn't hurt to include a disclaimer confirming that (a) you are not affiliated with the subject band, and (b) you are not claiming any proprietary rights in the title. It won't be an absolute protection, but it may help avoid any confusion.
The advice from my colleagues is sound---but with respect, i do not believe they are adequately explaining the risks. You certainly may be able to defend a charge of trademark infringement. But trademark law suits are expensive, and plaintiffs often win these cases depending on the circumstances. Moreover, it the song is "fairly well-known" chances are that the authors have produced or licensed derivative works based on the song, such as articles, music videos, commercials, etc, and your blog might not only violate rights to the original trademark song title, but also subsidiary rights arising from derivative uses of the name. Most importantly, I would never advise a client that this is "ok" without knowing the exact name of the song title that you want to use, and without conducting extensive research on the issue. Even then, I would remind you that law suits can be extraordinarily expensive to defend---even if you prevail in the law suit the legal costs can tens of thousands of dollars. Is this really a risk you want to take?
Take two well-known song titles as examples: Margaritaville and Material Girl. If you use the former for the title of a blog you will run into significant trouble because Jimmy Buffet owns a bazillion trademarks for "Margaretaville" to brand lots of products and services. On the other hand, Madonna owns NO trademark rights to "Material Girl" even though that is an equally well known song. So go see you own trademark attorney to get advice specific to your particular situation.
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