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July 6, 2013

Many things go into choosing, protecting a band's name

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The Daily Star

---- — 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. 

The first band to publicly use a name in a certain area or territory generally owns the rights to that name when it is used in that geographic area. It is legal for more than one band to use the same name if there is no confusion of the public regarding those bands. If one band only performs in local Oneonta venues, never has any radio play and has no national recording contract, another band located in Seattle can also use the same name if there is no confusion of the public about the identity of the two bands.

Since American law generally gives ownership of a band name to the first band to use the name commercially, how do you know if some one else is already using and already owns the name you’ve chosen for your band?

The United States Patent and Trademark Office,  at www.uspto.gov, tries to help people who want to know whether a “mark” is already in use. The US Patent Trademark Office operates the Trademark Electronic Search System, or TESS, a free service that allows you to search for names to see whether they have already been registered.

The USPTO will not register a name that causes confusion in the public regarding the provider of services. The band name should not be so similar to an already existing name that the public is not sure which band the name represents.

I decided to test this service by checking to see whether a band could use the name “Wild Men” to go on an national tour.” I went to the TESS website, tess2.uspto.gov, and learned that there are several groups with a similar name. Those include: Wild Men, Wild Man Dan, Wild Scotchmen and Wild Rabbit.

It seems that “Wild Men” is not a good name for a new band. Too many other similar names already exist.

Registering for Trademark Protection of your band’s name

A musician can apply online for a notice of copyright ownership. The filing process is not difficult and costs only $35. Federal registration for trademark protection of a band’s name, by contrast, costs at least $325 to file for protection. The filing process is a bit complicated, and many musicians hire a lawyer who specializes in intellectual property to do the work associated with a trademark application. This adds several hundred dollars to the cost of registering the mark. Should you register band name?

You do not need to register your band name to establish rights in the name, but there are important advantages to federal registration of a band’s name if the band intends to perform beyond its regional home base:

Your “mark” will be listed on the USPTO’s database and other bands will see that you own the name.

Federal registration gives you the right to sue, or threaten to sue in federal court, other bands who use your band’s name.

Federal registration gives you the right to use the federal registration symbol ® next to your band name, putting the public on notice that you assert ownership of the name

Tips on Choosing a Band Name for Federal Trademark Registration

Some people do their own registration of band names with the US Patent and Trademark Office, but many people ask experienced intellectual property attorneys to perform this service.

When choosing your band’s name, remember that the purpose of trademark identification is to protect the public from confusion.

Search several sources to see whether the band name is already in use. Some common places to check on band names include TESS at the U.S. Patent and Trademark Office, the Trademark Office Official Gazette,

Choose a name that is original and is not similar to other band names.

Choose a name that is easy for fans to remember.

Your band name will be one of the most important ways of establishing your identity and attracting new fans. Find a name that means a lot to you and will help your fans feel that they know you.

Dr. Janet Nepkie is a member of the music industry faculty in the music department of the State University College at Oneonta. Her columns can be found at www.thedailystar.com/musicbeat.