No substitute exists for a federally registered trademark. Some websites claim to protect your band’s name by listing you in a “band directory” or “band registry” and “establishing ‘prior use'”. You can get the same prior use from a free myspace or reverbnation page. However, neither is sufficient for trademark protection.
A band name is a brand name. Protect it. A band name is a word that identifies and distinguishes the source of service (live performances) or goods (sound recordings) of one party from another. As a result, a band name is registrable subject matter with the United States Patent and Trademark Office (USPTO). Trademark registration separates the kids from the adults. I’m not going to lecture about how you need to obtain trademark registration, because you know you do. There is a lot of material already on the internet detailing the importance of a trademark. I’m going to offer you some helpful hints and interesting facts regarding band name trademarks.
How to search for other band names
This is an important first step often overlooked. The USPTO offers a free basic search tool, which is just that, basic. You should never base your decision to proceed with a name using this tool alone. For example, let’s say you decide to use the name “the Lamineers” for your band. If you enter this in to the USPTO search bar you get zero results – “Yay!”. I’m sure the Lumineers won’t have an issue. Again, it is a basic tool not a comprehensive search. Attorneys have access to trademark databases that are not available to the general public through database subscription services. There is no trademark search equivalent to a legal opinion letter and search report from an attorney. However, when you don’t have the $299 for a trademark attorney search, you should at least search Google, Bing, Myspace, Reverbnation, Secretary of State websites for business filings and state trademarks, and any other place you’d expect to find a band.
Bands’ trademark disputes
One Direction (U.S.)
Their song “What Makes You Beautiful” was nominated for two MTV VMA awards. They acquired trademark registration for their name and then came to an “amicable agreement” to release the rights to their name to the British version of One Direction. The U.S. band now goes by “Uncharted Shores”.
The Postal Service
You may be familiar with their song, “Such Great Heights”. After applying for U.S. trademark registration this band received a cease and desist letter from the United States Postal Service. The two eventually came to an agreement where the USPS granted the band a free license to use the name as long as they provided a notice regarding the trademark in their future albums and the USPS agreed to sell the band’s CD on their website.
Originally called Hybrid Theory, however, the band Hybrid forced them to change their name.
Jimmy Page was initially in a band called The Yardbirds, when he splintered off to form his own band The New Yardbirds, his original band took issue. He changed the name to Led Zeppelin. A name inspired by a comment by two of the Who members that their band would go down like a “lead balloon”.
The Eddie Vedder lead group initially went by Mookie Blaylock (the name of the All-Star basketball player). Concerns with trademark issues forced them to change their name. Ever wonder why an album with 14 songs was named Ten? Well, it’s a jersey number they admire. They still hold Mookie Blaylock close to their hearts.
They go by the name The Saboteurs in Australia. In a bold move the Raconteurs adopted a new name after they received an unreasonable counter offer to acquire the rights to the name from the Queensland Australian group, The Raconteurs.
Trademark ownership can be complicated for a band. Make sure you have an agreement detailing the owners of your intellectual property. Such agreements can be incorporated into the formation of an LLC. For example, the LLC can own your trademark, making each member of the LLC an owner. In your articles of incorporation (an agreement filed with the LLC) include what happens if a member disassociates herself from the group/LLC. Make it clear who owns the intellectual property (the current members). Also, include provisions to return the disassociated member’s share back to the LLC.
Bands should acquire trademark registration to protect their investment. After all, why would you want to pump money into marketing a name that isn’t owned by you. It’s like peddling a bike without a chain.
If you need trademark assistance OnlineTrademarkAttorneys.com provides attorney assistance at an affordable rate. Get a trademark registered for $475 plus Govt. fee. Lastly, one of my favorite sports talk shows always opens up the debate of who is the best drummer that ever existed – that’s why I’ve included a poll below (to settle this matter).
Published June 20, 2013 by Brent Sausser.