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I have a friend who is a music artist who wants to protect his name. Which should he apply for a service mark or a trademark?

Marion, IL |
Filed under: Trademarks Business

i have a friend who is in the studio recording and wants to protect his stage name.Which should he apply for a service mark or a trademark?

Attorney Answers 6

Posted

Your friend should contact an entertainment or IP attorney.

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Posted

It may be both, for the "entertainment" services offered, and for the "goods" (e.g., music albums, etc.) sold. You can generally specify more than one class with a single trademark/service mark filing.

This is not to be construed as legal advice, and I am not your attorney, A conflict check and engagement letter would necessarily be required before any retention or attorney/client privilege exists.

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Posted

I agree with the responses given by my colleagues. However, I want to simplify the matter. The federal statue covering trademark actually uses the term "mark" and there is not distinction between a trademark and a service mark.

I agree that he probably will have a combination of goods and services protected.

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Posted

There is no practical difference. While it is easier to refer to trademarks that identify services as service marks and those that ID goods as trademarks they are both in fact trademarks.

Your friend should contact a lawyer that can conduct the proper clearance on the name and make certain it is filed properly with the USPTO.

I will link you to some helpful TM info below and most of us here, including myself, offer a free phone consult.

Best regards,
Frank
Natoli-Lapin, LLC
(see Disclaimer)

The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 Support@LanternLegal.com DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.

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Posted

Also realize that the majority of "names" may not meet criteria for registration, but that does not mean that it will not become a trademark over time (Apple, Pink, etc.).

Any artist needs an attorney, not only to protect their name, but to protect their work.

My disclaimer is simply that Avvo already has an adequate disclaimer.

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Posted

I disagree with my colleague. A trademark prior to registration is notated as TM to signify a "good." A service mark prior to registration is notated as SM to signify a "service." There are classification you can register under, some are for goods and others are for services. An artist could qualify and register marks under several types of classifications, both goods and services. Your music artist friend should consult with an entertainment attorney for sound advice on what works best for his career.

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4 comments

Frank A. Natoli

Frank A. Natoli

Posted

They are both trademarks. Those common law qualifiers (TM, SM) are used as you say but have no legal significance other than to serve as a notice mechanism.

Ivan Jose Parron

Ivan Jose Parron

Posted

I respectfully disagree. Use of notice mechanism while advertising a product or service in commerce is part of the process of registration. That is why registration requires specimens. So that the USPTO can verify that you have put the world on notice of your use. If every attorney followed your school of thought, no attorney would ever advise their client to use any notice mechanism.

Frank A. Natoli

Frank A. Natoli

Posted

Oy, there is some misunderstanding here, but the issue borders irrelevant so I pass on further clarification. Best, F.

David M. Slater

David M. Slater

Posted

Generally, you are much better off having an attorney assist you with the registration of your trademark. They can advise you as to potential conflicts, confusing similarity with other trademarks, and the difficulties of a trademark that is too generic. But I often run across individuals who cannot afford the legal fee of registering a trademark, and choose to do it themselves online at the trademark office website, www.uspto.gov. Some of them have done ok jobs if they followed the instructions carefully. Your friend would probably want to register his name in Class 41 for entertainment services and Class 9 for CDs and DVDs. I tend to agree with Mr. Natoli that the distinction between a trademark (symbol-TM) and a service mark (symbol-SM) has become relatively unimportant. Many are using the TM-symbol for services, and this should not affect the legal notice that is being provided to the public or the ability to obtain registration of the trademark/service mark.

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