Musicians who are trying to build the popularity of their band have an almost unending list of responsibilities. They need to keep their musical skills strong, take care of musical equipment, and if they are really thinking about a future career, they should also write their own music.
They also need to become known by as many fans as possible. One of the most important ways of building that fan base is to choose the right name for the band. It can take minutes, days or years to find the right name, but once the name has been chosen, bands do not want other musicians to use this valuable asset.
In previous articles, I’ve talked about ownership of a band’s songs and urged readers to register their music for copyright protection. Band names, however, cannot be protected by copyright. Instead, a band name is protected by a trademark or service mark. A trademark is a word or symbol that identifies the source of a product. A service mark is very similar to a trademark, except a service mark protects and identifies the providers of a service. In the music business, a trademark might be a band’s name and logo on a t-shirt, while a service mark might be the band’s name as used to advertise a concert. As a practical matter, the words “trademark” and “service mark” are often used interchangeably.
You can establish rights in your band name simply by using it in interstate commerce; that is, using the band name in performance or selling CDs and merchandise in more than one state. An Oneonta band, for example, could play a concert in Binghamton and then drive a few miles to play another concert in Scranton, selling T-shirts using the band logo and hanging posters in both cities to advertise the concerts as a means of establishing the use of the name in interstate commerce.