By trademarking your band or artist name, you, as the musician or artist, are essentially taking control over your artistic works (music, sculptures, photographs, etc.) as well as your name and brand.
Can I Trademark my Band or Artist Name?
It is important to note that while unregistered trademarks enjoy some protection in the geographic location the mark is used, federal registration provides owners with the presumption of national ownership of the mark.
As such, if you*re an artist or band contemplating the risks and benefits of trademarking your name, you*ve come to the right place. I will explain why you, as an artist or musician, must take measures to protect your band or artist name and your corresponding brand.
Your Name Must Be Trademarkable
If you intend to protect your band or artist brand, first, you need to adopt a specific and identifiable name and mark. This could be just a simple print version of your band name (e.g. *TRADEMARKED NAME*) or a stylized version of your name using a specific font and colors.
Not every name is trademarkable. The United States Patent and Trademark Office (USPTO) will not hesitate to deny a trademark for a name that is generic or *merely descriptive.* The more distinctive the name, the less likely it is already being used by another artist or band and the more likely your registration will be accepted. Additionally, when it comes to registering a band or artist name, priority is an issue. This refers to how long you*ve been using the name and mark, whether another band is using the same or a similar name and mark, and, if there is an issue with another name, who used the name first.
Determining whether a specific band or artist name can be trademarked is a tricky process, and you will typically need an attorney to conduct a trademark search to determine if there are any other marks or names that may prevent you from registering your name.
Placing the Public on Notice
Next, you need to use your name and mark in such a way that puts the public on notice that the mark and name are connected and associated with your band. This will make it so that your name and mark are associated with you or your band in the minds of the public. It will also help to establish distinctiveness and prior use depending on how you use your name and mark in commerce and the design or style of your mark.
Reasons to Trademark Your Band Name
Reasons to protect your artist name by a trademark include:
(1) Avoid infringing or duplicate band names: This is relatively simple, as an up-and-coming artist, you will not want to run into other artist with your same name.
(2) Protect your domain name and social profiles: This can be an issue if you discover that someone else is using your name on unauthorized websites or social media URLs. However, if your name and mark were protected by trademark, you*d have more options in terms of the proper recourse.
(3) Own your Name: You should trademark an artist or band name for no other reason than the peace of mind afforded by knowing your name is protected. However, the USPTO does not assist in policing trademarks. Thus, it will be your responsibility to use your mark properly.
This includes using your band name with the small circled *R* (for registered trademark) in all instances of use, which serves as constructive notice that your name is a registered trademark and provides you with a great deal of leverage should another band later infringe your trademark.
Important Considerations Before Registering Your Band Name as a Trademark
Below are four factors to consider before you apply for trademark registration of your band name, as well as how registering your trademark will lessen the burden of enforcing your mark and/or filing suit for unauthorized use, i.e. trademark infringement.
(1) Ownership: The first step in registering a mark is deciding who will own the mark. The owner can be an individual or a legal entity, such as a sole proprietorship, partnership, corporation, or company. When it comes to bands or musical groups, it is possible for several persons to jointly own the rights to the mark. That said, if you*re a solo artist, you should opt to be the sole owner of your trademark to avoid issues with enforcement.
(2) Identifying Goods and Services: The next step is figuring out what goods and/or services to include in your trademark application. This determination puts the public on notice of how you use or intend to use your mark in commerce. *Goods* are products, such as CDs, T-shirts, or pictures, AKA merchandise. *Services* are activities performed for the benefit of others, such as live vocal performances or meet and greets. Artists are free to register their mark in a variety of classes depending on the nature and style of their works.
It is important to keep in mind that the number of proposed goods/services has a direct connection to the application filing fee (i.e. the more classifications, the higher the filing fee), so you may want to limit your classifications accordingly.
(3) Registering a Name: Rather than creating an original name or pseudonym, some musicians and artists would prefer to register their legal name or an existing name as a trademark. While this does create additional requirements for the application, it is possible to register a mark that appears to be a person*s name, either living or deceased.
For example, if the name is that of a living person (including his/her nickname or stage name), then the applicant must get consent from that person to use and register the name as a trademark and include same with the application. Likewise, if the mark doesn*t refer to a living person, but could be construed as such (such as a band name that looks or sounds like a person*s name), then the applicant must include a statement with the application that the mark is not a living individual.
*See link below regarding additional requirements for registering a name.
(4) Domain Name Registration: Although the USPTO does not register domain names, it does accept applications for trademarks that include top level domains or TDL (e.g., *beyonce.com*). Long story short, whether you can register your domain name will depend heavily on whether the domain name conveys a source-identifying impression.
Enforcing Your Mark and Handling Unauthorized Use/Infringement:
Now that we*ve discussed pre-registration considerations, the next point of discussion is the importance registration plays in enforcing your mark and protecting against unauthorized use.
For example, if you were to file suit for unauthorized use of your artist name and mark now, where the mark has not been registered, you would bear the burden of showing that you have acquired trademark rights on the mark or name at issue and that the mark or name is distinctive enough to deserve protection. See Freedom Sav. & Loan Assn. v. Way, 757 F.2d 1176, 1179 (11th Cir. 1985). Additionally, you would need to show that the offending party's use of your mark or name is likely to cause consumer confusion as to the proper origin of the services offered. Id.
However, if you mark is registered with the USTPO, and you take measures to put the public on notice of your mark, the hassle of filing suit for infringement is lessened, both logistically and financially. Put another way, registering your trademark will save you a great deal of time, money, and frustration down the road.
Need Help with Your Intellectual Property Rights?
The law firm of Cynthia Conlin & Associates has experienced intellectual property lawyers who may be able to help you with your trademark registration and application questions.
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