Therefore, without a trademark, it is possible for two bands to exist with the same name, and neither would have a claim against the other unless the “reach” of the bands overlaps. While you can search for words and phrases, not all trademarks are words. Titles of songs and albums receive limited benefits under trademark law. When you think of bands like The Rolling Stones, AC/DC, Metallica, the Ramones, the Red Hot Chili Peppers, Aerosmith, KISS, and Iron Maiden, their logos and brands are immediately identifiable and familiar. But if you can establish "first use", you have "Common Law" rights (see below). So no, a TM is not above everything else. Someone doing business with a certain name, but who has not registered it. The last thing you want is to get your big break after years of hard work and building up your brand, only to find out that another band owns the rights to your band name and you have to start from scratch. Prohibited marks: a trademark that resembles certain official symbols (unless you have the consent of the authority) - e.g. I’m in New Zealand and so now understand I’ll have to register in Australia and the US separately should things progress to the point where touring like that actually occurs. However, once registered, the trademark owner is provided additional rights. Here are some other benefits of a trademark registration: it will stop dishonest competitors from diluting or tarnishing your band’s image; it will stop new bands from trying to use the name (as the name will appear in the Federal Trademark Register); it might allow you to claim triple the amount of damages if your band name is willfully infringed; in the event a domain name infringes your mark, a federal registration provides standing to bring an action that can force the infringing site to be shut down; and finally, you may be able to enlist the help of US Customs Service officers to stop gray market or counterfeit goods at the border. © SaskMusic 2021. Whatever you do, I would hire a good entertainment lawyer to give you a legal opinion on this, if the name is important to you. These brands also happen to be worth millions. Be sure to document that use (i.e screenshots of online usage, emails records, photos of posters, etc.). It’s New Year’s Day, 2008. I appreciate that paying rent, buying a new guitar, and maintaining your tour van might take precedence, but the cost of a trademark will be money well spent. Thanks for your questions, here are my answers: 1) Two bands with the same name that are conducting business in different territories can exist peacefully, assuming neither moves into the other’s territory. Band trademarks can assume numerous forms. as a band member looking at all the startup costs (digital distributor, web presence, LLC setup, trade marks) you can easily spend 2-3k before you make a cent. Btw, I’m a lawyer drummer too, though I practice outside of entertainment. A title of a song or album may be protectable, if it is used in connection with merchandise, such as clothing. e.g. Risky due to brand confusion with customers, but also because BOSE may oppose it. For a word mark, look for all conceivable spellings. How do you register? Your Australian trademark wouldn’t likely effect the US based .com user. Toll-Free in Sask: 1-800-347-0676 The trademark of a band name or logo serves to identify and protect these brands, and can be hugely valuable in the music industry. 2. I have the copyright registered under my name with said guitarist as a co-writer and believe we are too close to completion to jump ship. The federal agency responsible for registering trademarks in Canada is the Trademarks Office (TMO), directed by the Registrar of Trademarks. © 2021 Kurt Dahl. I would suggest filing for Canada first, as it’s cheaper and where you are based. You may consult one of the companies licensed to use the electronic database, or hire a freelance trademark searcher or registered trademark agent. However, if either of those bands land a record deal with national distribution, or release a song online that gains significant exposure in the other’s territory, they could bring an action to stop the other band from using the name further. If two bands have the same name and their territories do not overlap, each band would be entitled to prevent the other from entering into its “zone of protection”, and both have the right to expand into “unoccupied territory” so long as their areas of operation remain remote. searches their records for other trademarks that may conflict with yours, examines your app for compliance to the Trademarks Act and Regulations, publishes the app in the Trademarks Journal, allows time for challenges (Anyone may, upon payment of $250, file a statement of opposition). We came up with a name we all liked and we thought suited our college crowd etc. Word marks can also take the form of personal names. Start with the markets where you will be visible (i.e. Our website (saskrecording.ca) includes links to CIPO, or visit the sources below if you need further clarification. 1. the appropriate, completed application form; Hi. For example, Led Zeppelin would likely have a successful claim of trademark infringement if another band made t-shirts with ‘Stairway to Heaven’ written on them, because the song is so directly linked with Led Zeppelin. As far as I can tell he is receiving my royalites as well. However, it is advisable to use them, and you can indicate your registration through certain symbols, namely, ® (registered), ™ (trademark), SM (service mark), MD (marque déposée) or MC (marque de commerce). Every logo is coded for search purposes. Contact a trademark agent or the embassy of the country in question to find out about procedures. To ensure a thorough search, it is best to hire a trademark agent. The general prohibition on registering titles does not apply where there is a series of works involved. If i were to release the music before any other bands use the same Band name does that provide me any protections by default by being first? This is a statement indicating that you do not claim exclusive rights for a certain word(s) appearing in the trademark. i think the key phrase is “when you can afford to”. Within trademark law there is a category called servicemarks. I’m soon to release music for the first time. Registering a Stylized Format Download Article Design the mark you want to register. Thanks. Would my ‘other country’ Trademark registration have any bearing on this use? You will want to ensure that your chosen name is free of restrictions before you start to build a reputation or release albums. For example, if you started playing Regina in 1989 and never played or distributed music outside the this area, you couldn't stop a band from using your name in Ontario. It turned out to have a life of its own here, unfortunately the other party had alcohol issues. For this reason, trademarks are a very valuable commodity and thus, when they are infringed, serious issues are raised. ), but do we also include merchandise that could have the printed trademark name on it? Also prohibited is subject matter that is obscene or immoral. if no one files an opposition, the mark is allowed. Why do you need a preliminary search? The Stuart case involved a little-known rock musician named Thomas Stuart who performed in a group called The Rubberband. It helps you determine whether your application has a chance for success. CIPO handles other forms of intellectual property as well (remember "Copyrights" from the last Session?) My advice: if you take your career seriously (and you must if you’re reading this), you should think seriously about investing in a trademark for your band. Without a federal trademark, Stuart’s rights would have been limited to his immediate zone of reputation, and the value of his claim would have been greatly diminished. See if another band under the same name pops up. e.g. Another option you should be aware of is incorporation. Nope, the Office cannot provide a judgment at this stage. Word marks can also take the form of personal names. In conclusion, 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. Before you apply for registration, your agent should conduct a thorough search of trademark records to see if your trademark could be confused with someone else's. You cannot copyright a band name. To do this, you can consult a variety of sources, including the NUANS (Newly Updated Automatic Name Search) database, through the Corporations Branch. Stuart filed suit, and ultimately was awarded $250,000 after prevailing on his infringement claim. we never wanted to be more than we were, a cover band that worked weekends. Is it different for the music industry? In most instances your trademark must be used in Canada before it can be registered. (Helpful in locating bands no longer performing but who may have ownership of the name. You resolve to finally start the a cappella … I would recommend doing more research on the extent of the use of the other Shay Grey. However, absent a federal trademark registration, your rights in a mark are limited geographically to the scope of your reputation. Phone: 306-347-0676 databases used by retail stores -HMV, Tower, etc. In territories where it wasn’t used, they may be able to keep using it. An experienced, competent trade-mark agent can prevent problems such as a poorly-prepared application or inadequate research. (Generally the first party who uses a mark in commerce has the right to use the mark in that geographic area, and the natural zone of expansion therefrom. A trademark is one feather in the hat when it comes to your IP protection. If you fail to use your mark for an extended period, your registration may be cancelled. They still couldn't use your name in Regina area since you were the first to use it there. The process: Will the TMO tell you during your preliminary search if your trademark can be registered? Thanks! File an application for registration with the TMO. Sometimes musicians and artists want to register their name as a trademark, including a stage name or pseudonym. The federal agency responsible for registering trademarks in Canada is the Trademarks Office (TMO), directed by the Registrar of Trademarks. There are traditional Word Marks: Metallica, Iron Maiden, and Aerosmith are all word marks that have been registered with the United States Patent and Trademark Office, and protect the words themselves when used in association with music. Ps – it’s be a great hypothetical that you could use as an article…. Of course, the concept of completely isolated territories is a bit nebulous in the Internet age, but the principle still applies. Trademark rights in a band‘s name or logo. or if you do make sure you that money isn’t needed for rent. The test is whether the average consumer would be confused, and for me, removing the space doesn’t change anything. Words in other languages: if they are the name of the wares/services - such as "gelato," (Italian for ice cream.). Allowing you to use placenames as part of your trademark would give you a monopoly on a geographical term and be unfair to others. It is your responsibility entirely to monitor the marketplace and, if you find someone using your registered trademark or a mark/trade name that may be confusing with your trademark, to take legal action. It’s just a matter of finances and getting it done. One night I get a call from a friend saying he was at a bar and did the band kick me out? Companies, individuals, partnerships, trade unions and lawful associations may obtain registration of their marks of identification for wares or services, provided they meet the requirements of the Trademarks Act and Regulations. If you operate as a … However, this only counts in the area where you have used it. You can register your trade mark to protect your brand, for example the name of your product or service. The TMO is part of a larger agency called the Canadian Intellectual Property Office (CIPO), which is part of Industry Canada. Thanks Swey. There are traditional Word Marks: Metallica, Iron Maiden, and Aerosmith are all word marks that have been registered with the United States Patent and Trademark Office, and protect the words themselves when used in association with music. It can be bought, sold and commercially exploited and like other IP rights it should be properly protected and enforced. Obviously trademarking offers the best legal protection. Deceptively misdescriptive: a mark which is not clearly descriptive, but clearly misleading. It’s a good one and I don’t want to keep changing it to a lesser alternative . I’m looking at trademarking a band sometime in the not to distant future and both this post and this excellent question has answered a few of the questions I had rolling round in my head. and i do want to sell merch, is that a different trademark? The TMO will prevent someone from registering a mark that is the same or confusingly similar to yours. Although expensive, trademarking is the most effective form of protection for your name. You can establish rights in your band’s name without a trademark, through the simple use of the name. The issue of band name ownership should be decided and agreed by the band upfront in writing, and comprehensive agreements regarding the commercial exploitation of the name … I’m wondering about registering a band name that has a trademark already but its used for vehicle sound systems by Bose. Because if your fans are confused and/or not able to find you easily, you will want a different name. ), U.S. - The annual Billboard International Talent & Touring Directory (check in libraries), the Lawboard - a cool bulletin board, but note it's U.S. law (. What's a disclaimer? Once you've filled out the appropriate form, simply pay the required filing … Registering a Name. A registered trademark can be protected through legal proceedings from misuse and imitation. The first question is why you need to do this? "juicy" for apples. It's important to search all avenues before you apply for trademark. A registered trademark is one entered on the Trademarks Register. The lines become blurred in the Internet age, but the point remains the same. Trademarking the Name of a Band - Brompton's Cocktail. If you incorporate your band, there may be tax advantages; plus, they will automatically do a NUANS search (see above) before letting you incorporate. A category … Fees may range from $250-1000. Trademarking in Canada does not protect you in other countries. Im rather broke, i want to release my music, but am nervous that someone may come along and snatch up the trademark if it starts to get recognition, before i can afford to. Well turns out that as the popularity of the band grows, the band name … The band trademarks listed above are arguably as identifiable as the band’s songs, and in many ways, just as valuable. Policing your trademark When it comes to rock and roll bands, trademarking the band name is … Email: info(at)saskmusic.org I played in an above average at best cover band in the 90s. Fast forward to today and the song is nearly done yet the producer does not “want to touch it with a 10 foot pole“ simply because of emotions from the guitar player/former client. This long winded story is just to prove my point that I wish we’d have copyrighted our name to save the high blood pressure I had for a month. After a good 4 year run we all started doing other things and wanted to play less. How Much Does It Cost To Trademark A Band Name Now quite a few sites online are showing him as the copyright of my music as well as many places such as Spotify. All Rights Reserved • Privacy Policy • Terms of Use. However, we never obtained the band trademark. You are not required to register your trade-mark - using a mark for a certain length of time can establish your ownership through "Common Law"-but it is highly recommended. If they start to move into the other’s territory, it’s a matter of hiring lawyers and proving who has a stronger claim, likely based on prior use (i.e. Place of origin: a word that designates the place of origin of the wares/services, or misleads the public into thinking that they come from a certain place if they don't. Like any trademark, a band's name is an asset, and potentially a valuable one. Registration is legal title to intellectual property (much the same way as a deed is title to a piece of real estate). Thanks. So the first step in seeking trademark rights is to do a trademark search for related trademarks through the USPTO database. The correct legal protection is a trademark. vinyls, downloadable music, songs etc. For example, The Replacements released an album titled Let it Be, which of course The Beatles did years before. In this way, you can use clearly descriptive words which are unregisterable on their own (described above), with the understanding that you have no rights over them. Upon payment of the $200 registration fee and the filing of a declaration of use (in the case of a proposed use trade-mark), your mark is registered. But don't limit yourself to one name. Thus, for example, a band in Toronto with only a regional reputation in Ontario can peacefully coexist with a band in Vancouver using the identical name. Email me at kdahl@murphyandcompany.com and I’ll connect you with my trademark agent. Good morning Kurt, "Paris Fashions". What is a trademark? Even though some bands have been around for years with that name, even a rapper, and I trademarked it, would I basically win the right to the name? And registering your name in every country would cost a fortune. In theory, it is never too early to apply for a trademark. (I’m guessing the band with the most clout would win) you could not register "sugar sweet" for candy sweetened with artificial sweetener. You also have to check for bands who may have used the name sometime in the past and, while they may not be performing anymore, have released recordings using the name. If your band uses the name "The Bugs" in Regina, and you are the first to use that name, you hold the superior rights in the area where you are actually using the mark and any surrounding areas in which the use of the mark would naturally extend.) That doesn't include agent fees (if you use one). Your email address will not be published. If you were allowed to register these words, no other apple sellers could use them to promote their goods, which would be unfair.
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