A trademark is a logo, phrase, or picture symbol used to distinguish a manufacturer’s product from other people’s goods. In the music industry band names are separated from one another and cannot be copyrighted under trademark law. For example “Guns and Roses” and “Metallica” can both maintain their separate identities, because of this law. Trademarks differ from service marks only in the aspect that trademarks represent a particular product and service marks promote a specific type of service. Band names are considered service marks, since they help distinguish between entertainment providers. However, one can register their band’s name as a trademark, if they are associated with specific merchandise items, such as record albums and t-shirts.
There are numerous ways, which you can go about registering your band’s name as a trademark. When going about this process always make sure that no one else has the same band name. You can do this by checking the Phonolog at your local record store or by searching the Billboard’s Talent Directory. The Billboard’s Talent Directory can be an expensive item to buy, so be prepared. Another way to go about making sure your band’s name is not being used is to call the closest public library and ask them, if they have a Federal Trademark Register CD-Rom. Once you locate a library, which carries this you can go in and do a search for your band’s name. Be sure to search each word separately, as well. If no one is using the band’s name or any separate words in your band’s title, then you should be all right. However, if another manufacturer is using part or your band’s entire name, then consult an attorney for advice. For example, if your band name is entitled “Sweet Success”, and you come across a candy store, whose name is “Sweet Treats,” you may have a problem. This is why it is important to search both the full band name, as well as the individual words. Hiring a search firm may be the most reliable way to go about this process. It will save you a lot of time, but be ready to spend a little bit of money. Most attorneys will charge between $300-500 to complete this procedure.
Since most band names fall under the category of service marks, trademarks for products are usually a secondary method of sealing your identity. Bands usually play music, so this is considered a public service. If you never play live but make CD’s and tapes, your name probably only applies to a specific product, which would cover trademark status. Service usually comes first for most of us, product second. However, the same form is used for both trademarks and service marks, when registering. You can just think of it as a technicality. If you call the Patent and Trademark office help line, they will probably tell you only to register your service mark for now. It offers ample protection. Once you start selling actual merchandise, such as t-shirts, action figures, and posters you can register your band’s name as a trademark.
There are classes, which allow you to register your band’s name as a trademark or service mark or both. In addition, there is a help number in Washington D.C. (703)-308-HELP, which will guide you in this area. They have a useful book entitled “Basic Facts About Registering a Trademark”, which contains all the necessary forms you will need to fill out. Remember, registering your band’s name as a trademark, is usually only useful after you have started to sell actual merchandise. Most bands should register under a service mark first, since playing music is a form of entertainment, which provides a service to others. Of course, it doesn’t hurt to do both, but be prepared for some detailed research and forms that will need to be filled out to get this process started. Hiring an attorney to do the research for you may be the best way to go, if you have the money. Trademarks and service marks allow a band to show ownership of its music and products. It is what gives the band its individual identity to allow them to stand out in their own spotlight.
Updated: February 18, 2008
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