Expert: Vinnie James - 3/25/2008

Question
Hello Mr. James,

I just have a quick question regarding band names: specifically, I would like to know if there is a resource through which one can determine if a band name is copyrighted / protected, or available for use?  I have presently formed a band, and don't wish to step on any toes, so would like to make sure our chosen name is available, and then if so, protect it for our use.

Thank you very much for your time and assistance.

Regards,

Mark Strong


Answer
Hi Mark... what you're looking to do is "trademark" your name... Copyright is used for things like poems, books, songs, photographs, paintings, and other things that people can "copy."

Since you're talking about a band name, you're talking about something that you'll be using as a name under which you'll be doing business, and that makes it a trademark...

The US Patent and Trademark office defines a trademark as follows:

"A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others."

Using the above definition, you can see how a band name would be considered a trademark. The "source of the goods" would be the band (which would use trademark protection), and the "goods" would be their music (which would use copyright protection).

IS A TRADEMARK A REQUIREMENT?

Is trademark protection (registration with the Patent and Trademark offic) required? Here's what the Patent and Trademark has to say:

"No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, e.g.,

* constructive notice to the public of the registrant's claim of ownership of the mark;
* a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
* the ability to bring an action concerning the mark in federal court;
* the use of the U.S registration as a basis to obtain registration in foreign countries; and
* the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods."

So, in many cases, bands don't trademark their name because, simply USING the name establishes "legitimate" use of the name as a trademark. Of course, if the name was in use before you began to use it, and if there was ever a dispute about it, you could run into problems. I would certainly "google" the name to see if there are any other bands out there using the name. I would also do a search at the US Patent and Trademark Office website.

Below, I've posted a couple of links for you. One is the main Trademarks page at the US Patent and Trademark Office web site, and the other is their search page, which is also available by clicking the first link and then clicking on the "Publick Search Facilities at USPTO" link on the left side of the page near the top.

Here's the main Trademarks link:

http://www.uspto.gov/main/trademarks.htm

NOTE: Be sure to click the "where do I start" link at the top of the list on the left hand side of the page...

With regard to being able to search their database, here's that link also:

http://www.uspto.gov/web/offices/ac/ido/pssd/index.html

Well... I hope this info was helpful for you...

Love to you...

Vinnie James
http://www.myspace.com/vinniejames