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  •  The EvO:R-Pedia Musicians Tips Section


    Welcome to the EvO:R Tips Section. We call this section EvO:R-Pedia because it is like a complete reference library for Indie musicians...Just about every tip has been used so you won't find false promises and a series of books to buy after reading each tip. This section was put here by musicians so that people that followed can take this knowledge and use it's power.



    A basic guide to using and protecting band names

    Imagine the scenario. Band A has been playing regular pub gigs in Sydney. Band B is just starting to get noticed in Perth. Both, concidentally, share the same name. Neither is aware of the other until Band A gets picked up by JJJ and people start getting confused. Whose song is on the radio? Is this a local gig by Band A or is it Band B on tour? To avoid stealing each other's business, one of the bands is probably going to have to change its name. This is unlikely to be convenient for either of them. Ditto for DJ's, solo artists and promotion companies. If a name is similar or identical to another, there can be a problem.

    What if the other band's name is a registered trade mark?

    If Band B has registered the name as a trade mark Band A is in a tight spot. See Arts Law's Trade Marks Information Sheet, available on our website or by contacting us.

    What if neither band has registered the name?

    If neither band has registered the name as a trade mark it is a matter of evidence as to who has the oldest and strongest claim to it. Each band will need to establish their reputation in the name via old gig posters, magazine reviews etc. Negotiation is always preferable to court action, which can be very expensive. However, while negotiating keep an eye on the Trade Marks Office (tel 1300 651 010 or online at www.ipaustralia.gov.au). If one band applies for a trade mark the other band may need to lodge an opposition to preserve their interim position.

    What if the names are similar but not identical?

    The law applies various objective tests to work out whether names are too close for comfort. Although actual public confusion over the names is not strictly necessary, it helps. Keep a record of any instances of confusion you know of.

    Limitations on ownership of names

    Sometimes nobody has an exclusive right to a band name. For example the name might simply describe the style of music. In other cases bands may be forced to share a name, as where they have developed separate geographical reputations. An international act might not own its name in countries where it has not toured or sold records. However, reputations are increasingly mobile via global communications.

    Avoiding disputes

    There are a few simple steps which can be taken to minimise name disputes. Before choosing a name, check industry publications and phone books. Search business names registers (band names must generally be registered as business names - see Arts Law's Business Names Protection Information Sheet here, available on our website or by contacting us) and the trade marks register. If you are hoping to go international, search the internet and any other means of looking up acts in target countries.

    Protecting your own name

    Keep a file on the history of your use of the name and register it as a trade mark. Establish your reputation as widely as possible (for example via a website and tours, and even international trade mark registrations). And if you notice a new band using your name, seek legal advice on a letter of demand. Art + Law


    Disclaimer: The articles and information on this website are provided only for the purposes of discussing legal issues. They are not to be relied on as a substitute for legal advice. The Arts Law Centre of Australia accepts no liability for losses caused by reliance on any of the materials it publishes. Before acting on any matter, take advice from a qualified legal practitioner. Copyright Notice All articles and information provided on this website remain the copyright of the Arts Law Centre of Australia. Permission is granted for viewing and downloading for personal and not for profit purposes. Individuals or organisations wishing to publish or reproduce any materials for commercial, educational or other uses are requested to contact Arts Law on (02) 9356 2566 or toll free 1800 221 457 or by email or fax (02) 9358 6475.


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