From novice musicians to established arena rock stars alike, one of the biggest things that a band has going for them – aside from their songs – is their name. After all, how many times do you hear (or ask) the question, “Who sings that?” Regardless of if you’re looking to make it big, or just play locally or regionally, it’s important to protect the rights to your name to ensure that there’s no duplicate use and confusion among listeners and consumers. The United States Patent & Trademark Office issues trademarks for band names, and, with a trademark you get all the protections and rights to exclusive use of your name. The legal landscape of the entertainment industry can be a tricky one to navigate, and trademark law is no exception. Let’s take a look at how you can go about getting a trademark for your band name.
Conducting a trademark search for your band name
When you’re deciding on a band name, and when you decide to trademark it, it’s important for you to make sure that there’s no other band out there already using that name. Trademark law allows for trademark rights with or without registration, so if a band has been using the name before you, they’ll most likely retain the rights to it. On the other hand, if you’ve been performing for a while but are only now getting around to getting a trademark for your band name, you may be entitled to the legal rights to the name, provided you can prove priority usage – that is, you were using it first. It should be noted that an unregistered trademark can normally only enjoy rights in the geographic regions where the trademark is used whereas a federal registration gives the presumption of national ownership of a trademark.
In any case, you’ll need to conduct an exhaustive search, not only of the USPTO register, but of any band already in existence, thanks to the lack of a registration requirement. When you’re deciding on a name, you’ll also want to make sure you choose something distinctive. The USPTO is quite strict in denying generic or “merely descriptive” terms, so the more distinctive your name, the less likelihood that it’s already in use or will be used in the future. Remember also that the USPTO is not just looking out for identical names, but “confusingly similar” names, whether through misspellings, differences in punctuation or spacing, or homonyms – words that sound the same. Keep away from anything that looks or sounds too much like an existing band name.
Submitting the trademark application for a band name
On your trademark application, you’ll need to make a few decisions in addition to settling on a band name. First, you’ll need to decide how the name will be used to represent you – will it be in “plain text?” Will there be a stylized form of the name, incorporating a distinctive font or design? If you plan to have a logo, you’ll want to consider filing one application for your name, and, a second application as a logo (click here to watch a video which explains this concept in further detail).
In addition, when filing our trademark application, you’ll need to determine what classes you’ll be using the name under. Typical classes that apply to bands are live performances, recordings, and merchandise. It’s helpful to work with a trademark attorney to ensure that you cover every area in which you’d like to be protected, now and in the future. If you’re selling your own branded clothing, for instance, you may need to show not only how your band name will appear on a shirt, but also how it will appear as the brand name on a tag or package. These are the kinds of subtleties that can cause trademark applications to be delayed, denied, or inadequate to fully protect a band’s name.
Properly using your band name trademark registration
After six to eight months, if the USPTO examining attorney determines that your band name meets all the requirements of an acceptable trademark, you’ll be successfully registered. From here, it’s your responsibility to use your mark properly. That means using your band name with the small circled “R” (for registered trademark) in all instances, which serves as constructive notice of your registration. This gives you a great deal of leverage should another band later infringe on your trademark. Remember – a USPTO registration gives you the presumption of national protection, however, it is up to you to police the trademark. The USPTO doesn’t assist in policing trademark violations, but it is there to help provide you with a trademark registration to help deter and handle infringements. With a registered trademark, you have much greater legal power to protect yourself against those infringements – leaving you more time to focus on your music.