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?”
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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
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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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James Hill is a veteran of the music industry. He first worked at Warner Reprise Records then later joined Interscope/ Geffen Records where he managed producers and songwriters and got his first platinum record for Keyshia Cole’s The Way It Is. He is now helping indie artists with branding and manufacturing through his company Unified Manufacturing, a CD/DVD/vinyl and merch company in LA.
