Trademarking the Title of a Band

Trademarking the Name of a Band

Most musicians learn about copyrights. With out copyright safety, different musicians and music firms would possibly declare your songs as their very own, reap income from them, and even sue you when you carry out your individual compositions. Many musicians aren’t conscious {that a} comparable calamity can befall a band that doesn’t correctly set up and defend trademark rights within the identify it chooses.Band names and logos as trademarksA trademark is any phrase, phrase, image, sound or design that’s utilized in commerce to establish the supply of products or companies. Music recordings are items, and leisure is a service, so a reputation that’s used to establish the supply of a tune or the musicians who carry out it’s a trademark. For instance, the identify, “Smashing Pumpkins” is a trademark that’s used to establish a specific band’s sound recordings and musical performances. Additionally it is a trademark for posters and shirts displaying that phrase.Copyright legislation doesn’t defend names, titles or quick phrases. Registering a copyright for a group of songs with the band’s identify on the duvet could defend the band’s rights of authorship within the music, however it is not going to defend the band’s identify. For that, trademark registration is required.Logos are a particular case. If a emblem is an authentic work, then the art work could also be copyrighted. When it’s used to establish a specific band, then it could even be protected as a trademark.How trademark rights are createdTrademark rights are created through the use of a reputation or image in reference to items or companies to establish the supply of the products or companies. Merely deciding on a reputation for a band will not be sufficient, even when the identify is written down on a chunk of paper, witnessed, notarized, and saved in a protected deposit field. Trademark rights come into being solely when the band takes the additional step of placing the identify on a product (resembling a CD, or a digital recording that’s made accessible for obtain on the Web) or an commercial for the product, or publicly performs or advertises its leisure companies below the identify.Trademark rights can come into existence with out registration. As between two bands with the identical identify, the primary to make use of the identify in commerce to establish the supply of their musical services or products (resembling affixing the identify to a CD that’s provided on the market, or utilizing the identify in an commercial or flyer for a live performance efficiency by the band) would be the one with trademark rights.Why registration is importantSince trademark rights are linked to first use, some web sites supply to guard a band’s identify by merely itemizing the identify in a band identify registry. Whereas this may generate some proof of use, it’s not determinative of the problem, and it’s not adequate for trademark safety. Solely registration with a state or federal trademark workplace will set up a prima facie case or a authorized presumption of trademark possession.Registering your band identify with the U.S. Trademark Workplace creates a powerful presumption that you just personal the trademark rights in that identify. Topic to some exceptions, it normally will probably be all of the proof of possession you want on your protection if one other band makes an attempt to sue you for utilizing a reputation that it claims is confusingly much like theirs. And it’ll allow you to file go well with, if essential, to forestall different bands from utilizing your identify, or a reputation that’s confusingly much like your band’s identify.The stakes are excessive. Being ordered to cease utilizing a reputation will not be the one factor that may occur to an individual who’s efficiently sued for trademark infringement. He might also be ordered to destroy or give up any merchandise which have the infringing identify affixed to them; to disgorge any income which have been made by way of the usage of the identify; and to compensate the trademark proprietor for damages. In some instances, he might also be ordered to pay punitive damages and the trademark proprietor’s legal professional charges.Trademark issues in selecting a reputation on your bandMany musicians assume solely about aesthetics when selecting a reputation for his or her band. You also needs to take into consideration the distinctiveness of the identify as a model. One technique to start to do that is by looking the Web to see if anybody else is already utilizing the identify. Search Amazon, iTunes, ReverbNation, MySpace, and Fb. Then do a world search utilizing Google or a comparable search engine. If a band is already utilizing the identify you wish to use, you need to select a special identify.You will need to perceive {that a} band identify could infringe one other band’s trademark even when it’s not an identical to the opposite band’s identify. A unique identify can infringe one other band’s trademark whether it is confusingly much like the opposite band’s identify. The identify “Pearl Jamb,” for instance, would infringe Pearl Jam’s trademark rights.Quite a lot of trademark guidelines and rules can affect your capacity to register and defend your band’s identify. For instance, emblems that merely point out geographic origin can’t be registered. Names which might be merely descriptive of the products or companies offered additionally can’t be registered. Misleading, generic, immoral or scandalous names can’t be registered. The rule towards disparaging emblems prevented The Slant from registering a trademark of their identify. Based on the USPTO, the identify might be construed as disparaging Asian individuals. These are just some of the doable causes the USPTO would possibly reject a trademark registration.In fact, most bands wouldn’t have the assets to conduct a trademark search or retain a trademark legal professional’s companies when they’re first beginning out. It’s a good suggestion to seek the advice of with a trademark legal professional as early as doable, although. Along with the possibly devastating penalties of an infringement lawsuit, it may be tough and dear to re-build your band’s identify recognition if you find yourself having to alter the identify someplace down the road, particularly in case you are unable to forestall different bands from utilizing the identify you initially selected.Who owns a band’s nameThe basic rule is that the proprietor of a trademark is the one who controls the character and high quality of the products or companies. Within the absence of an settlement, figuring out who controls the character and high quality of a band’s items or companies could be sophisticated, notably if a band works with a producer and/or a recording firm. There will also be points throughout the band itself. If a band breaks up, which members, if any, have the proper to make use of the previous band’s identify?As a result of bands nearly all the time break up sooner or later, it is rather doubtless {that a} authorized dispute over the proper to make use of the band’s identify will come up between members of the band, or between members of the band and the band’s former producer or recording firm, except rights to the identify are clearly specified by a written settlement. For that reason, it’s a good suggestion to get clear on possession of the band’s identify from the outset, and spell it out in a written settlement. If the band is working as a company or a restricted legal responsibility firm (LLC), it needs to be addressed within the articles of incorporation or the working settlement. It may be a good suggestion for the company or the corporate to personal the identify, and to incorporate particular mental property provisions within the working settlement. It will put the band in a greater place in dealings with producers and recording firms, and can forestall disputes over departing members’ use of the identify.The registration processThere are three fundamental steps within the trademark registration course of: (1) a trademark search; (2) making use of for registration; and (3) Trademark Workplace processing of your software for registration.Trademark searchAfter you may have accomplished your preliminary search of the Web and assume you may have discovered a reputation that isn’t confusingly much like one other band’s identify, it’s advisable to do an precise trademark search, not solely of the USPTO’s web page, however of different databases, too. There are trademark search corporations who will do that for you. Earlier than paying certainly one of these corporations, although, ensure you perceive what you might be getting. Non-attorney corporations would possibly produce a listing of comparable names, however is not going to advise you about whether or not a reputation is confusingly comparable or not. Not being attorneys, they usually is not going to advise you about whether or not the identify you have chosen is eligible for registration or not. Lastly, in lots of instances, they’ll solely conduct a search of a single on-line database, the USPTO’s. A trademark legal professional who performs this service for shoppers will search state and different related databases, will advise you about whether or not the type of identify you have chosen is eligible for registration, and can give an opinion about whether or not any comparable names his search uncovers are too confusingly much like yours to be registered.Software for registrationIf you might be assured that your identify is eligible for registration, the subsequent step is to file an software for registration of your trademark. The federal submitting price is $325 for every class of products or companies wherein you want to register a mark ($375 per class if submitting by common mail as an alternative of electronically.) At a minimal, a band identify needs to be trademarked within the classes of recorded music and reside leisure companies. Different classes to contemplate would possibly embrace clothes utilizing the band’s identify (e.g., T-shirts), and printed gadgets resembling posters. In the end, the classes you choose will rely upon how you intend to market your band.You’ll need to incorporate a specimen of your mark together with the appliance. A specimen is documentary proof of your precise use of the trademark.When you have not but begun to make use of the identify in commerce, you’ll be able to file an “intent to use” software. You’ll nonetheless should file a press release of use, together with a specimen picture, sooner or later, however submitting an intent-to-use software provides you extra time to do it.Examination, publication and oppositionAfter submitting your software and specimen pictures, a trademark examiner will evaluate your software for completeness and eligibility for registration. If there’s a drawback, you’ll obtain an “office action.” You’ll then have a specified time period wherein to appropriate the issue and reply. In case your software will not be rejected at this stage, will probably be revealed within the Trademark Workplace’s Official Gazette. Anybody opposing registration of your mark will then have a specified time period wherein to object. If an objection is filed, an opposition continuing is commenced. An opposition continuing is much like a civil lawsuit, in that every social gathering information pleadings, conducts discovery, and will make motions. An opposition continuing can delay the registration course of significantly, typically for years.Issuance of a registration quantity and certificateIf your software will not be rejected on the examination stage, and if it’s not efficiently opposed after publication within the Official Gazette, then your mark will probably be assigned a registration quantity and you can be issued a registration certificates.Trademark registration solely offers safety throughout the geographic area wherein the mark is registered. A mark that’s registered with the USPTO doesn’t defend your trademark rights in different nations. In case your band begins to tour internationally, or when you begin promoting your wares in different nations, you will have to register your band’s identify in these nations to guard your trademark rights there.After a registration certificates points, it’s your accountability to police it, i.e., monitor {the marketplace} to make sure that no on is infringing it. Additionally it is your accountability to make sure that it’s renewed on the correct instances.Must you rent an legal professional?Whereas it’s doable to register a trademark with out an legal professional, the USPTO recommends that you just use one. There are good causes for that. A trademark legal professional can assist you keep away from losing lots of time and non-refundable submitting charges attempting to register an ineligible mark. Additionally, in case your software comprises even a single minor mistake, it may take many months for the USPTO to let you understand, and it may take many extra months after that for the USPTO to let you understand if the issue has been corrected. An legal professional conversant in trademark legal guidelines and the Trademark Workplace’s analyzing procedures ought to get the appliance proper the primary time.Trademark safety on your band’s identify is one place the place the previous adage, “An ounce of prevention is worth a pound of cure” is true. It is among the first issues you need to do when you make the choice to hunt a wider viewers on your band’s music than the neighbors dwelling subsequent to your storage.This text doesn’t represent authorized recommendation. It is just background dialogue about trademark points. When you have any questions or considerations, it’s strongly really useful that you just contact a lawyer.