LEGAL EASE: Protecting Your Band Name as a Trademark
The selection of a band name creates a host of legal issues. Obviously, this brief article cannot touch on every legal and intellectual property issue that relates to a band name. Instead, this article is primarily focused on trademark law. The most vital and valuable trademarks in the music business are the names of bands and individual performers. Band names serve the important function of identifying the artist’s goods and services.
First, you should know that you cannot copyright the name of a band. Copyright law does not protect names, titles, slogans, or short phrases. Copyright protection, however, may be available for a band’s logo design or artwork if it contains sufficient authorship. Also, in some circumstances, a band’s logo may be protected as a trademark.
A trademark is simply a word, phrase, sound, or symbol that represents the commercial reputation and identity of a product or service in the marketplace. For example, when you see the band name “The Rolling Stones,” you identify that name with Mick, Keith, Ronnie, Charlie and the other musicians who have played in that band. Likewise, when you see that distinctive red tongue logo, you know that logo represents or identifies a product or service from “The Rolling Stones.” Hence, “The Rolling Stones” and the infamous red tongue are both trademarks.
Trademark rights will depend primarily on how the band name is being used, as trademark rights are acquired by the use of the trademark. That means the first person to use a trademark acquires rights to that name superior to anyone who later uses the same name. Most commonly, a band name functions as an identifier (known as a “service mark”) for entertainment services because bands use their names to identify and distinguish themselves when playing a gig. Also, a band name functions as a trademark for a band’s musical recordings. Without the band’s name, a customer would not be able to identify the album it wished to purchase (Spinal Tap’s all-black album Smell the Glove might be an exception.)
Trademark registration is not required to have trademark protection, and not all trademarks qualify for registration. You can register your band name trademark federally or through your state. Registration with the federal government, through the U.S. Patent and Trademark Office, has much sharper teeth than state registration and offers significant benefits to the owners of registered marks. Additionally, if you are using your band’s name on a commercial basis (i.e. playing gigs and selling records), you obtain common-law rights in the name. The ability to obtain trademark rights to a band name, either through registration or common law, hinges on multiple issues.
A band that is serious about making a name for itself will usually protect that name through federal registration. Obtaining trademark registration with the federal government is not an easy or cheap process. Bearing in mind that you are asking the government for a monopoly on your band name, it’s no wonder the Trademark Office examines your application through a complicated process.
When you are choosing a band name, your goal, from a legal perspective, should be to choose a name that avoids infringing on an established trademark. Initially, you should google the band name you want to use and make sure to scour iTunes, MySpace, and Amazon. If a band is already using a name you like, it is wise to choose another name. Also, changing the spelling of an existing band name won’t defeat your problem because you can infringe on one’s trademark by using a name that is likely to cause confusion. For example, the name “The Beetles” would infringe on “The Beatles’” trademark rights. If you name your band “Death Taxi for Booty,” you’re likely to hear from a lawyer representing “Death Cab for Cutie.”
While many legal factors come into play, one way to ensure your band name is protected by trademark law is to choose a name that is “completely arbitrary.” In the legal sense, this means your band name should not relate to your band. For example, a band from Nashville named “The Nashville Ramblers” is not completely arbitrary because the name is directly connected to where the band is from. “Alice in Chains,” on the other hand, is completely arbitrary and has strong trademark protection.
Once you have decided on a band name, you should consult an experienced trademark lawyer to inquire about registering the name as a trademark, especially if your touring or album sales are increasing in numbers. It’s also prudent to figure out who owns the trademark rights in the band name, and get that agreement in writing (most often it’s through an LLC agreement). A written agreement about ownership of the band name will save a lot of headaches if the band breaks up-just ask Slash and the other former members of Guns ‘N Roses.
In short, goodwill, commercial recognition, and other valuable intellectual property rights are bundled in a band name. The reputation of a band is built on its name, which is what the public uses to identify the bands they enjoy. Therefore, you should take the necessary steps to protect your band name. A final piece of advice: create a unique, distinct name and avoid generic and descriptive names. Think of it this way-when you mention the name of your band to a friend, they should respond, “What the hell does that mean?” You want a name with thick protection, and you don’t want to be forced to change your name due to trademark issues as you grow your following of fans.
Disclaimer: This article does not constitute legal advice-it is only background discussion about trademark issues. The author strongly recommends contacting a lawyer with questions or concerns.