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reference library for Indie musicians...Just about every tip has been used so you won't find false
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Making Your Mark Secure the ownership of your band name by trademarking it.
by Mary Cosola
The quest for the perfect band name-you know, one that sounds cool, looks great on
marquees, and is highly memorable-is extremely tough. The name needs to fit your
music, and it must look good printed on CDs, T-shirts, and other promotional
paraphernalia. Trying to think up such a name (not to mention putting up with
dumb suggestions from your friends) is bad enough, but imagine this: you've
agonized over your choice, put years into playing and releasing CDs under that
name-and then find out that another band not only has the same name, but has
trademarked it. Bummer.
Many musicians make the mistake of thinking they don't have to worry about legal issues until they've established their act. In fact, the best time to look into trademarking your name is the minute you choose it. Don't wait until you've developed a following-that may be way too late. Your band name is your act's identity, and establishing a new one takes a lot of work. By filing for and obtaining a federal trademark for your name, you can protect yourself against infringement from other acts using the same name or a very similar one. Let's look at how to research a band name and protect it once you've determined that it's yours alone to use.
The Casual Search When you and your bandmates start kicking around band names, you're conducting research without even knowing it: you point out to one another that certain proposed names are already taken or sound too much like another band's name. Once you've settled on a name, your informal research should continue as you ask friends and colleagues their opinions and whether they've heard of any other bands with that name. You should check regional and national entertainment listings as well.
The Internet is an important tool for researching band names. For starters, you can type your chosen band name into a search engine and see what comes up. You can also check sites dedicated to listing band names, such as the Ultimate Band List (www.ubl.com) and BandName.com (www.bandname.com). At the Ultimate Band List site, musicians register their band's name and provide information about the group, song clips, and links to relevant sites. You can use this list to see if anyone is using your desired name. BandName.com, besides letting you look up band names and registering your own, also offers its registered members many resources, including databases of industry contacts and venues across the country, legal advice, and classified ads. You should also check out a few music retailers, such as CDnow (www.cdnow.com) and Amazon (www.amazon.com), and look for your proposed band name there.
Making it yours Now that you've decided on your band name and conducted some informal research on its availability, you can start calling it your own. The best way to establish ownership of a band name is to use it. You can trademark a band logo, so consider creating a unique one or having it designed for you (even a nicely executed typographic rendition of your band name can work well). Think of it as establishing a strong brand identity. When someone says "Coca-Cola," you quickly conjure up the logo in your mind as it appears on the product. When you see Nike's swoosh, you know it's a Nike product. Indeed, Nike rarely even uses the company name in advertising anymore-the logo alone assures recognition.
The basis of trademark law is pretty simple: a trademarked name identifies the source of a particular product or service. Infringement on a trademark occurs when someone in a similar field uses the same name, or knowingly uses a similar name in an attempt to create confusion in the marketplace as to the source of the goods or services. For example, if you were to name your band Trident, the makers of Trident chewing gum couldn't claim trademark infringement, because you are not selling gum or candy or any similar food product. No one will confuse a band with a brand of chewing gum (at least we hope not). But if a company introduced a line of sugar-free gum called Tridentt, it would likely get sued for trademark infringement because consumers could easily confuse the two products.
I should pause here to mention that legally you don't need to trademark your band name to use it-or even to defend it, for that matter. If you have a name you've been using for a long time, and your band has strong name recognition regionally or even nationally, you can conceivably prohibit another band from using that name. Unfortunately, it can take quite a bit of legal legwork to make your case, so you're better off registering the name as soon as possible.
Because trademarks are used to identify the source of goods or services, they are issued to businesses-and that means you'll have to establish your band as a business first. This can be as simple as filing a "fictitious business name statement" (also called a DBA, for "doing business as"). To do this, you need to file the proper forms with the county where your band is based, and because each state has its own procedures, you should contact your county clerk's office for information on how to file. Once you have established your band as a business, you can proceed with getting a federal trademark.
Legal Ammo Your efforts to trademark your band name will culminate at the U.S. Patent and Trademark Office, or PTO (tel. 800-786-9199 or 703-308-4357; Web www.uspto.gov). Check out the "Basic Facts" page on the PTO Web site for the most vital information, such as what defines a trademark and how to register for one, as well as downloadable forms and a detailed fee chart (www.uspto.gov/web/offices/tac/doc/basic/basic_facts.html). Besides trademarks, the PTO also issues service marks. Briefly, the difference is this: a trademark appears on product packaging (your band name on your CD), while a service mark identifies the source of a service (your band). For definitions of and distinctions among trademarks, service marks, and copyrights, see the sidebar "Assorted Rights."
The PTO has two types of trademark applications: a use application, for a name the applicant is already using; and an intent-to-use application, for a name not yet being used. Federal trademarks are valid for ten years and can be renewed for another ten years each time a term ends. Between the fifth and sixth years, though, the trademark owner has to file an affidavit providing certain information to the PTO. Mostly, the PTO wants to make sure the business or entity that owns the trademark is still active. If your band dissolves and no one follows up, the PTO will cancel the trademark.
This leads to an interesting question about who owns the trademark. If your band files a fictitious business name statement and gets a trademark for the band name, who keeps the name should the band break up? This is one of those issues that a band should decide at the outset. You might decide that no former members may continue to play under that name, and designate someone-perhaps a lawyer-to keep the trademark alive, especially if the band still has CDs in circulation.
The Verdict Don't be put off by the amount of detail work involved in trademarking your
band name. If you're willing to do the work necessary to make your band even a modest
success, then jumping through a few legal hoops to secure its identity is well worth
the time and effort.
Mary Cosola is a contibuting editor to Onstage and Electronic Musician.
Copyright. Protects the rights to an original artistic or literary work, such as a song,
a book, or a painting. Copyrights are not covered by the Patent and Trademark Office,
but rather by the Library of Congress
(tel. 202-707-3000; Web http://lcweb.loc.gov/copyright). Note that an original work of
art for your band logo requires both a copyright and a trademark.
Service mark. The same as a trademark, except that it identifies the source of a
service rather than a product. A service mark would apply only to your band name.
Here is how the PTO distinguishes the two: "Normally, a mark for goods [a trademark]
appears on the product or on its packaging, while a service mark appears in advertising
for the services."
Trademark. A word, phrase, symbol, or design (or combination thereof) that identifies
the source of particular goods or services. This would apply to your band name-as it
appears on your CD and other merchandise-and to any logo your band uses.
www.bandname.com This site offers a database of band names and music-industry resources.
www.bandreg.com The Band Register is a London-based international registry of band names;
it also offers A&R services and other music-industry resources.
www.ubl.com The Ultimate Band List offers an enormous list of band names, as well
as links to other relevant Web sites.
www.uspto.gov The U.S. Patent and Trademark Office is the federal agency that issues
trademarks and rules on ownership of trademarks.
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