Trademarking your band name - who's done it, how, and can it be done without a lawyer

[quadrajet]

A couple years back I had the Patent and trademark office send me some info and from what I could decipher of it, it looks like it costs about $500 to file for one and if it's denied for any reason, they still keep your money, which is why I guess it's recommended for you to hire a lawyer to do some kind of search of what has been trademarked.

Isn't this the so called information age? Can't this be searched on your own without getting Johnny Cochran involved? I did a search on here and it looks like it might be a must to hire a lawyer which I'm not at all thrilled with having to do.

Just want to know who's done it and if the process is still as painful as it seems.....

 

[glynb]

Trademarking is done for a band logo. it could contain you band's name written in a particular fancy style, but doesn't have to contain the name, could be just a symbol or abrheviation. That is relatively expensive, but essential if you are seriously going to make some money to protect your name. yes, you'll need legal people to set it up, but if you're at the stage that you need a trademark then you'll be making some good money anyway to pay the lawyers, I mean this isn't something a band playing in a small club for beer money would bother doing.

'Trademarking' a band name as in making sure no-one else can use it, no that can't be done. You have to prove that you are the band who are most known using that name and that the newcomers who are using your name have less claim to it than you do through years of giging and use of the name and so on.

As far as I'm aware, you can't go and register a band name somewhere and then that's it, noone else can use the name world wide, it doesn't work like that. Trademarks yes, band names no.

 

[HangDawg]

'Trademarking' a band name as in making sure no-one else can use it, no that can't be done. You have to prove that you are the band who are most known using that name and that the newcomers who are using your name have less claim to it than you do through years of giging and use of the name and so on.

As far as I'm aware, you can't go and register a band name somewhere and then that's it, noone else can use the name world wide, it doesn't work like that. Trademarks yes, band names no.

I'd like to hear confirmation of this. Not that I doubt you. I just know that most people believe you can't use another bands name.

 

[quadrajet]

Huh?

That doesn't sound right to me either...
there was one guy I found on a search on here who said something to the effect of Shrek owing him money for using a band name he trademarked back in the glam era. Wasn't KISS originally called "Rainbow"? How did Ritchie Blackmore snake that name away?

I do know that trademarking a name in the U.S. does nothing to prevent someone in France, Germany, Zimbabwe, etc. from using it also, but it does give you a legal leg to stand on here in America.This is why the band Bush is called "Bush" here but go into Canada and try looking for a CD from them and they are called "Bush X"

Incidently, in hindsight - why the hell would any group (let alone TWO) want to name a heavy metal band "Rainbow" anyway?????

 

[mshilarious]

I'd like to hear confirmation of this. Not that I doubt you. I just know that most people believe you can't use another bands name.

Yes that info is not accurate. Once you register a trademark, you do have to prove use in interstate commerce. However you shouldn't be in competition with other bands trying to use the same mark, that's the purpose of registration.

http://www.uspto.gov/web/offices/tac/tmfaq.htm

You can register your own trademark; it might be better to hire an attorney but it's not mandatory.

You can do trademark searches here (an example):

http://tess2.uspto.gov/bin/showfield?f=doc&state=r2r5k2.2.7

I would also suggest that you check to see if the domain name is available. I actually find that much harder than trademarks; many many domain names are taken without any trademark registration.

 

[glynb]

Like i said, there's a difference between calling your band something, and registering a trade mark.

There was case recently where the new boyband in the UK called themselves 'Blue'. In the 70s there had already been a band called Blue who had a couple of minor hit records. There was a recent court case, the upshot was that the boyband were alowed to keep using the name because it was unlikely there'd be any confusion between the two acts (one being a boyband the other a guitar poprock band).

The argument wasn't between the two acts using the same 'Trademark', it was about them using the same band name.

Ultimately if someone starts using the same band name as yours, asuming you're not Led Zep or some other household name where the case is clear cut, then you can ask them to stop with a threatening letter, but if they refuse to back down and change their name you have to slug it out in the courts and there's no guarantee you'll win.

A Trademark is backed by law and if they tried using your trademark they'd be in big trouble. As i understand it though, there's no international trademarks, so you have to trademark your logo in each country you intend to sell stuff.

Like the other poster said, before you decide on a band name do lots of searching in google. if you use anything that sounds commonplace chances are someone else will have thought of it before you and have prior claim to it, especialy if they are an established gigging band for example, or have records out.

 

[Monsoon]

You all might be experts on recording, but now we're in my territory.

I can't speak as to UK law, but here's how it works in the US. If you have a name of a business, store, service, product, BAND, etc., and you use that name in the provision of those goods or services, then you have a right to that name within the state in which you used it. If you were first, you are the senior user with senior rights with respect to those particular goods or services. Same thing with a logo. Works the same for each of names, words, slogans and logos.

If you register with the USPTO, that gives you stronger rights throughout the country to sole use of that name, logo, mark, slogan in the provision of that particular good or service. Here's an example from the AEROSMITH trademark:

"IC 009. US 021 023 026 036 038. G & S: video discs, laser discs, CD-ROM discs, digital video discs, digital versatile discs, compact discs, audio cassettes and video cassettes featuring music. FIRST USE: 19720900. FIRST USE IN COMMERCE: 19720900"

Here's another: "IC 041. US 107. G & S: ENTERTAINMENT SERVICES RENDERED BY A VOCAL AND INSTRUMENTAL GROUP. FIRST USE: 19720900. FIRST USE IN COMMERCE: 19720900"

How about Stone Temple Pilots: "IC 009. US 021 023 026 036 038. G & S: series of musical sound recordings. FIRST USE: 19920929. FIRST USE IN COMMERCE: 19920929"

and

"IC 041. US 100 101 107. G & S: entertainment services provided by a musical group in the form of live performances. FIRST USE: 19920929. FIRST USE IN COMMERCE: 19920929"

So register your band name with the USPTO for those kinds of goods and services. Anyone else who uses it for those purposes is risking trademark infringement - whether it's a name or a logo.

Do you need a lawyer? Not necessarily, but a lawyer can make sure the first time through that it is done right, that your goods and services descriptions are proper and comprehensive. AND a lawyer can make sure a proper search is done. If you screw up, you can be stuck. No, you don't get a refund from the USPTO.

Also, the USPTO database is not the only place to search, though that is a good start. Let's say you are starting a band called Goo Goo Dolls. You search the federal register and find nothing. You get real big up and down the east coast. You go nationwide. Then you find out that in California a really well known local band has been using that name for years before you - they just never registered at the USPTO. Well, now you've invested all that time and money in a mark, and generated good will and name recognition, in a mark that you may not be able to use - at least in certain states. Lotta time and money down the drain, and you have to either buy out the other band, or start all over again with a new name.

Are there certain tweaks and exceptions? Yes. Aren't there always in the law - that's why lawyers always answer questions with "maybe" or "it depends". They're not trying to be dicks (though that's what people end up saying), it's just that the law isn't always a simple quick answer. But what I wrote above is the general rule as to how it works. So go out and register those band names - I know I plan to for mine in the near future.

Oh, and that comment above about checking the domain names is a great one - so many people forget that and then get stuck when they get around to doing their web site.

Hope this helps.

 

[Monsoon]

As i understand it though, there's no international trademarks, so you have to trademark your logo in each country you intend to sell stuff.

That is correct, though you can "piggyback" off of your US registration when you go into those other countries. In the US, the first to use has the senior right. In many other countries, the first to file the registration has the senior right.

But, hey, there's only so much you can worry about when it's just the four of you in the garage preparing for gigs at the local clubs.

 

[quadrajet]

The above links were extremely helpful. It looks like the whole process is much more streamlined than it once was. I think I'm pretty safe as far as no one else having a claim to the name I want to go with. I'ts an odd combination of words that does not come up on the USPTO's search list and google only has it coming up as something completely unrelated to band's or music (a defunct toy line, to be precise). It looks like the whole "just because you don't find a match on the searches, it doesn't mean you should assume your name is available" thing is "cover your @$$" double-speak from the trademark powers that be.

I still have some other questions and since you guy seem to have been through this, it helps make the process a little less intimidating. Like I said, all of my searches seem to indicate that all systems are a go. But if I hypothetically file for a name that somehow someone else filed for and it didn't show on a search - are there any issues I need to be concerned about other than my claim being denied and my filing fee going into the well?

If worst case scenario is I lose my filing fee, I think I'm willing to roll the dice because I'd rather lose my $325 -which is less than I remember it being before anyhow, than gamble the other way and start using a name that someone may rip off a year from now. I've been through that before. From 1998 to 2002 I had a band called Noise Gate. Great name, and we had a decent buzz and with the advent of MP3.com - national exposure. Next thing I know, within a year there are 5 others (including 4 on MP3.com) using the same name.