Expert: Terrance Copley - 3/25/2008

Question
Hello Mr. Copley,

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
Hey Mark....

The two key concepts involved in "protecting" the name of a band are "territory" and "priority". Territory means the area where you use the name, e.g., Chicago, Illinois, Mid-West, United States, world-wide, etc. Priority, as the word implies, involves who uses the name first. These two concepts work together to limit the scope of protection for a name.

If you started using your name first, you can prevent others from using it. However, the law allows you exclusive use of the name only in the area where you have used it. For example, if you started playing the Chicagoland area in 1989 and never played or distributed music outside the Chicagoland area, you could not prevent a band from using the name in Florida. However, they could not use the band name in Chicagoland since you were the first to use the band name there. You also may acquire the rights to your name for Chicago in 1989 and nation-wide in 1992 when you release your first record for a major. If someone started using your name in another part of the country in 1990, you could not prevent their use in their territory since they have priority in that area.

A famous case involved two bands both performing under the name, "Flash". The first was a small band in San Francisco who had never recorded a record and the second was an English band who had a major label deal. Since the San Francisco "Flash" was a prior user in that area, the English "Flash" was not allowed to sell albums in the Bay area.

Before investing money in the name of your band, you should investigate whether anyone else is already using the name. If someone is already using your name, as explained above, they have priority in their territory. A good place to start is BMI and ASCAP. Both of these organizations will do a search of their roosters for conflicting names. You may also check Phonolog which is a list of albums and can be found at many record stores. Also check out the annual Billboard International Talent & Touring Directory. There are also many resources at libraries in large metropolitan areas. The librarians will also assist you in doing a trademark search of state and federal trademarks. The final place you may consider searching is the Secretary of State of California and New York. Since these are the two largest "entertainment" states, they can be helpful as well. The Secretary of State can tell you if they have any businesses registered under the proposed name. You can never be guaranteed that no one is using your name somewhere, but these avenues are a good place to start.

After checking the availability of your name, you should take steps to protect that name. As stated above, priority of use in a specific territory is the key to protecting a name. Keep careful records of your public use of the name. Record where and when you played or sold records, and any publicity so as to prove what territory you have used the name in and for how long. As for legal protection, there are a few routes you can take.

You cannot copyright a band name. The correct legal protection is a trademark. Within trademark law there is a category called servicemarks. A trademark identifies a product while a servicemark identifies a service. Since a band is in the business of providing entertainment services, a servicemark is the proper tool to protect the name of a band.

The amount of protection you want for the band directly reflects the amount of money it will cost you. The least expensive route is a state trademark. Fees vary from state to state, but they are generally under $100. A state trademark gives you protection throughout the state you register. You can get the application by calling the Secretary of State. If you don't have a record contract or don't tour nationwide, I recommend a state trademark to start.

The next step is a federal trademark. A federal trademark gives you rights throughout the entire United States. The application fee for a federal trademark is presently $245. If your music is distributed throughout the United States or you do extensive touring, you may want to obtain a federal trademark. These forms can be obtained by calling (703) 308-4357.

Since the entertainment industry is now world-wide, there are 175 countries that allow the registration of trademarks and 60 which allow the registration of entertainment servicemarks. Even if you focus on the five or so most important jurisdictions, (Great Britain, Canada, Germany, Mexico and France), you are still talking a great deal of money for trademark protection on a worldwide basis.

Finally, the "(R)" symbol: what does it mean? Unlike the copyright symbol, "©" (which anyone can use whether their work is registered with the Copyright Office or not), the trademark symbol, "(R)", can only be used if you have a federally registered trademark. By using the "(R)" symbol, you put everyone on notice that you own the trademark and anyone using it would be a wilful infringer. There is also a "TM" symbol used occasionally. This has no legal definition or significance, but is generally used to claim ownership of an unregistered trademark.

In conclusion, when starting a band, you should: first, research the proposed name for conflicting uses; second, document the dates and territory where you use the band name; third, take steps to protect the name through servicemarks.
Good Luck,

Terry Copley
The Catz in the Hatz
www.myspace.com/catzinthehatz


Band Name Trademark Search
Because trademark rights are based on use, it's recommended to first conduct a comprehensive search to determine if someone else is using the same or similar name. However, unlike a business selling products or services, a traditional trademark search service may not be sufficient for a performer or band.

If you intend to perform or release your music nationwide and another band has been using the same name before you, they could have superior rights within a particular state and prevent you from using that name there. Often, a more successful band will have to buy out the local band's rights - a very expensive situation that you'd want to avoid.

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