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 Should
You Trademark
Your Band
Name?
by Kenny Love
. Added
July 2005.
Back to The
Academy
The
Question...
"My lawyer
says that if I fail to trademark my band name, another band with the same
name could trademark it and stop me from using it. Then, I would have to
repackage all of my CDs, and change the band name my fans are already
familiar with. What's more, the other band could even sue me for
punitive damages. The cost to do a formal search is $500, the cost to
trademark is $335, and my lawyer's fees would be $1000. That's a lot!
However, the potential risk of using the name without a trademark is
significant. What are your thoughts?"
____________________________________________
Kenny's
Answer....
Your
attorney is correct. However, I must add that, a band that co-exists with
the same name must prove, legally or otherwise, that it was utilizing the
same name *prior* to your doing so.
And, this is where the
"otherwise" comes in, as proving such does not necessarily dictate that the
competing band have its name formally registered in order to present you
with a "cease and desist" order.
In fact, it can be as simple as the
competing band having utilized its name for some time before yours and, as
such, has achieved a certain level of name recognition and notoriety,
whether on a regional, national or international level.
This is a
major determining factor in a band preventing your use of its name. Through
the years, I have actually watched this unfortunate situation occur with
several bands.
Also, many bands elect to wait until they have
(hopefully) achieved some career milestones before registering and
trademarking their band names.
This is not smart, particularly, if
you are in this business for the "long haul," so to speak, and plan to have
a long career with your act in the Music industry.
Just as you would
not (hopefully) operate a business selling your CDs without a business
license and (hopefully) would not forego filing your annual federal and
state taxes, you should treat the trademarking of your band's name with
equal seriousness.
Therefore, the best time to begin strongly
considering protecting your band's name through trademark is as soon as
you decide to definitely make Music your career.
Because, the absolute
worst nightmare would be for you to become a national, or worse, worldwide
success, selling thousands and, possibly, millions of units of your music,
only to receive a legal notice that you must now change your band's name
and all of its related content, as well as your possibly being sued for
having used the name.
As for the cost to do a formal search being $500,
the cost to trademark being $335, and your attorney's fees being $1000,
would you rather take a chance on confusing and losing your fans five years
from now with a forced name change and being sued for millions of dollars,
or is paying the lesser amount of $1,835 now to eliminate the possibility
of this nightmare starting to look a lot better?
Consider taking the
time and money to trademark your band name as an investment and a bonafide
security cost that protects you and your career for life. And, after
going through your trademark process successfully, and if you are,
indeed, planning on a serious career in the Music industry, you may also
wish to strongly consider incorporating your business as well.
What
incorporation does, is take the burden off your personal assets as a
possible loss, and limits the burden to only your business assets should you
ever encounter and, unfortunately, lose a lawsuit. For $2,500 (or less),
you can sleep well every night knowing that you and your career are
completely protected legally through your trademark and
incorporation.
Trademarking your band name is just as serious as your
copyrighting your songs. And, I cannot conceive of any serious
songwriter, musician or recording artist who has not invested the small $30
in order to protect his written or sound works, yet, has released a CD to
the general public.
In short, trademark and incorporation are two
areas in the Music industry, whereby, the old axioms, "an ounce of
prevention is worth a pound of cure," and "better safe than sorry,"
truly apply, and in full force.
The alternative is as aforementioned...to
lie awake and worry if, somewhere in the world, a band with your name
that was utilizing it only one week prior to your using it, has had now
discovered your use of it and has asked its attorney to turn your life
upside down and make it a living hell.
To begin researching your band
name for trademark purposes, try the following:
* http://www.google.com
* http://www.uspto.gov
* http://www.bandregister.com
* http://www.bandname.com
-----
Kenny Love is president of MuBiz.com,
a radio promotion and media publicity
service that also provides business and career services for
musicians. See
the company's corresponding website at http://www.MuBiz.com
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