The band name. The most difficult part of starting a band. It’s easy for all these solo acts that just use their own name. But if you don’t want to use your name, or if you’re a band, you have to come up with a different name that you’re happy representing you. It’s going to be your calling card, how people know you, your brand. Once you have a following, it’s difficult to change your name, so you spend hours thinking about it, trying out different things, making words up, checking as best you can that no-one else is using it and you’ve finally settled on your name. Now how do you make sure no other band starts using the same name as you?
As I covered in my last post, when a person creates something, they own it. Good old Intellectual Property (IP) Law. And this goes for your band name too. You create it (even if it’s a commonly used word), you create your brand, you own it. But what if down the road you realize that there’s another band out there, all the way over the other side of the world, that’s using the same name? Who gets to keep it?
Generally speaking, the band that can prove, through legal channels or otherwise, that it was using the name first owns it. And using it first could be by as little as a week, or even a day. Finding this out and then fighting over it can involve lawyers and litigation and can be costly and time consuming. Not to mention the cost of having to reprint any CDs, merchandise, changing websites and erasing any use of that name should it turn out you weren't first. Even if you know you had it first, the other band may have a bigger following than you, or be so adamant that they want to keep the name that they force it to a judgment before they’re willing to give it up. So how can you avoid this?
Well it’s never possible to be 100% sure that this won’t happen, but the best way is to trademark your band name. This way you have a definite legal date of when your band name was yours. A trademark is a word, phrase, sound, or symbol that represents the commercial reputation and identity of a product or service in the marketplace. Like, for example, your band name. Start by googling, searching iTunes, Amazon, Reverbnation and various other music sites to make sure no other band is already using the name you’ve chosen. Then head over to the US Patent and Trademark Office website (or your country’s equivalent) and do a trademark search to make sure the name hasn’t been registered in the field you want to use it. This is where it can become difficult to understand and the use of an attorney may be beneficial to you, as the name can have been registered for use in another field and still be ok for you to use as long as this won’t legitimately cause confusion between the two brands. Once you (or your attorney) are sure that there is no conflicting trademark, you can proceed with the registration.
Make sure you apply for your trademark under every category that you want to be covered in (for music, most of these fall within category 041 although some do pop up in other categories, so make sure you’re covered everywhere you want to be). I tend to use the more general category definitions rather than the ones that are extremely specific, (for example just ‘music production services’ rather than ‘music production services in relation to the field of …..”) that way you’re covered with more bredth.
The cost of filing a trademark application is between $275 and $375 (USD) per category, depending on if you file online or by snail mail. You could file the forms yourself, they are not overly difficult, the main sticking point for most people would be identifying your categories. But if you do not feel confident with the process, it is always best to hire an attorney who specializes in this field, and unfortunately their fees will obviously be higher. It can be a costly process, but if you’ve decided that you want to make music your career and you really believe in your band, it’s worth the outlay now not to have problems later.
Remember, the music business is a still business, so make sure you’re protected!
Lily Lambert graduated from The University of Hertfordshire School of Law with Honors, and proceeded to be involved in the Entertainment Law field for the next 8 years.
Disclaimer: The information contained in this blog is provided for general informational purposes only and is not intended to be, or replace, legal advice. The law is constantly changing and will differ depending on your location, therefore information contained within this blog may not apply to your location or set of circumstances. Nothing in this blog is intended as a substitute for the advice of an attorney. If you need legal advice, please consult an attorney licensed to practice within your jurisdiction.