We run through the importance of registering your artist or band name as a trademark, and the 5 key details that you should be aware of.
The benefits of protecting your musical copyrights are widely discussed in the industry, yet less is spoken about the advantages of registering your artist or band name as a trademark. Your band name is one of your most valuable assets and is obviously integral to your brand as a whole. So how do you go about ensuring that you legally own the exclusive rights to your name?
There’s a common misconception that you can copyright a band name. Whilst this is possible with the design of a band logo, the band name itself is protectable under trademark law. Put simply, a trademark is a word or symbol that represents a company or product, distinguishing it from others.
Artist and band trademarks take the form of both word marks, e.g. “Alt-J”, as well as personal names such as “Paul McCartney”. Some artists and labels (e.g. The Rolling Stones, Sub Pop, Aerosmith) have also registered distinctive logos and designs as trademark. Want to know more? Check out our 5 pointers below:
1. Make sure your name really is YOUR name
This might seem obvious, but the first thing you need to do is check that no one else is using your band name. Google is a good starting point, but to really cover your tracks you’ll want to search the USPTO (United States Patent and Trademark Office) website to look for existing or pending trademarks. (Not in the US? Check out WIPO’s handy Directory of Intellectual Property Offices Worldwide.) It’s a good idea to check for similar names and misspellings too. Changing the spelling of an existing trademark won’t necessarily get you off the hook either. For example, the name “The Beetles” would infringe on “The Beatles’” trademark rights.
You need to be the first band using your particular name. If another act can prove they were using the name before you, it’s likely that you’ll lose in a trademark dispute. You don’t want to tour and sell music and merchandise under one name for years, and then have to start over under a new name, or potentially find yourself involved in a lawsuit. Registering your trademark will also mean you have control over your web address and social media URLs, handles, and so on in the event of a dispute.
2. Don’t wait until later in your career
Don’t hesitate in trademarking your name because you think you’re not well known or successful enough yet. For the reasons stressed in point 1, you should strongly consider protecting your band’s name through a trademark as soon as you’ve decided that music is your full time career. There is no benefit in delaying – act quickly before someone else registers your name.
If you have not used your trademark before, you can file an “intent to use” for the mark in commerce with the USPTO. The intent to use is good for 6 months and can be renewed every 6 months for three years.
3. You’ll have to register your trademark separately for other territories
If you want to use your trademark in countries other than your own, you have to be registered with international trademark offices. To save time and application costs, there are options available for you to register your trademark across multiple territories. For example if you’re based in the US and want trademark protection in countries which are members of the European Union (EU), you can apply for a Community Trade Mark. Additionally, through The Madrid System, you can protect your trademark in the territories of up to 96 of its members through just one application.
4. If your name is deemed offensive, it will be declined by the trademark office
Trademark offices have the right to decline a trademark registration if they deem it to be offensive in a particular way. US trademark law, for example, prohibits the registration of trademarks that, among other things, “may disparage… persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute.”
The Slants, an Asian-American rock band from the U.S. first tried to register their name as a trademark in 2010, when it was refused on the basis that it disparages people of Asian descent. Still battling to register their name, the band recently urged a U.S. appeals court to strike down part of a federal law that has prevented it from trademarking its name, arguing that offensive speech or ethnic slurs cannot be censored by the government. You can read more about the case here.
5. You’ll probably want to get a lawyer involved
Although there’s nothing stopping you from registering your trademark without any legal aid, it’s an arduous process with lots of forms, and attorneys experienced in trademark applications will know how to get you the most protection. Generally speaking, it’s a good idea for bands to consult an attorney when creating any kind of band agreement. Once you register your trademark you need to vigorously defend it against similar marks, so hiring an attorney will most likely be worth it.