Band names and Trademarks

[songsmith]

Always go to www.uspto.gov before deciding on a name. No matter how obscure you make it, somebody else has likely come up with the same idea. Another thing to do before deciding is run the name through the search engines, and search on www.allmusic.com
If there ever was a recording act by that name, it's on there. All names I ever thought I came up with... they're on there.------>JMS

[facingwest]

Another site to check would be www.ubl.com simply because they have a lot of obscure bands on there as well. Allmusic is awsome as songsmith mentioned.

[Ron]

Kevin, I don't know if I would be so quick to change my band name, since there aren't any registries for 'Stillframe' in the USPTO database, and only one listing in the other two searches. The one listing is for a high school band in Canada that hasn't played since 2000.

I had an interesting talk with Carl Bell from Fuel one time about how they managed to hold on to the name 'Fuel', since it was such a common word. He said that when they looked into it, there was a very large number of bands in the US with the name Fuel, but since none of them were officially trademarked, (like facingwest did), they just continued on without paying attention to it.

Here are some basic trademark rules, and unless you are making some serious dough in merchandise/CD sales under the name you want to trademark, I'd skip it.

1. Trademarks only apply to merchandise, not services. If you want to protect your band's name in relation to playing live, you need a servicemark, not a trademark.

2. Trademarks are meant to prevent product pirating. If you sell enough non-CD merchandise that someone may start pirating it, then it's time to trademark (if the cost of your sales justifies it).

3. Any legal action involving an infringment on your trademark will most likely end in a "cease and desist letter", and a happy lawyer. It is doubtful that any costs would be recouped, unless it involves blatant pirating or copyright infringement.

4. Don't mix trademarks up with copyrights. Copyrights are there to protect your original work (songs). Trademarks protect your name and logo from being used on competing products.

Whew.

[oobie]

where would you go or who do you talk to about trademarking your band name or copyrighting it?

[Ron]

oobie,

copyrights: www.copyright.gov
trademarks: www.uspto.gov

Make sure that you know that legal stipulations of any gov't registration before you send any money to any of the offices. Also keep in mind that a copyright is one of your rights under US law.
You don't have to pay anything to have a legal copyright. If you write a song, the second that the song is finished you have a legal copyright to it. If you anticipate legal trouble, the copyright can be optionally registered at the copyright office for $30, but again, registration is NOT necessary.

I wouldn't even consider registering a trademark unless I was selling large amounts of merchandise (not CDs)... enough that piracy would be a problem. Recorded material is not covered by a trademark, but by your (free) copyright.

A trademark is actually free, just like a copyright, but only for "products in use" and if it currently doesn't infringe on a mark that is already registered. The trademark protects your primary logo/band name on products or in advertisements, but nothing else. Your copyright protects the original songs.

If you wanted to prevent another band from playing live under the same name, you would need a servicemark. It's like a trademark, but for services instead of goods.

Remember that neither copyrights, trademarks, nor servicemarks are going to automatically protect you. You still have to be the one who finds offenders and legally takes action, usually in small claims court, or possibly in criminal court in cases of large-scale piracy.

Costs?
The trademark registration filing fee is $335.00 per class of goods and/or services. If you want to protect your logo on your CD, that's one class (class 9). Logo on clothing? Another class (class 25). Stickers? Yet another. (class 16). See my point?

[oobie]

thanks a bunch ron? i new there was some stuff involved and i appreciate the advice, no i see how it works i read some stuff on the uspto.gov site but i was confused as hell, but now i think i get it. thanks again.

[Ron]

It also costs more to renew a trademark than it does to get it initially. $400 per class for renewals. There are a lot of misc. fees that would also apply (to both renewals and new applications).

Hey facingwest, when do you guys have to renew?

[Ron]

I would be interested in hearing from anyone out there who has had any (good or bad) experiences involving band names and trademark issues.

[Captain Cool]

It does occur.

REVIS wasn't always REVIS. It used to be ORCO, until they were almost sued for having the same name as someone else.

[jim bagrosky]

Ron or anyone who may know,

Ron you mentioned a free trademark in your previous post. How do you pursue that? I'm on www.uspto.gov and I'm kinda confused here. I'm interested in filing for a bandname. Can anyone help?

[jim bagrosky]

Question: I'm interested in filing a trademark/servicemark on a particular name for my project. On www.uspto.gov the name is trademarked under a marketing business. Since I'm not in that business would it even matter if that name was used for a band. I'm not seeing anything on there that would indicate either way.

Also the same name is NOT registered under www.bandname.com which leads me to think I might be ok on this. Does anyone know for sure?

[Ron]

Sorry Jim, I missed your post somehow, so this is late.

If you want to sell merchandise and want to protect the logo, then putting a "TM" in a circle (the "trademark" symbol) on the merch will give you the "free" protection I talked about, though it really isn't protection, but it is the first step to trademarking a logo. In other words, you can put the "TM" logo on merch without paying anything to the patent trademark office, as long as it doesn't violate someone else's established trademark.

If someone were to duplicate your logo and say, start selling shirts with it on. Then you could take legal action, but first you would have to pay to register your trademark, (which can be done after-the-fact). However, if the pirates duplicating your logo did a search and registered your logo before you do, then they could possibly get the upper hand. At that point it would be a legal battle as to who designed and first used the trademarked logo.

It's hard to understand, I know, but a product of some type, which sports your logo, has to be on the market before you can register.

[Ron]

It does occur.

REVIS wasn't always REVIS. It used to be ORCO, until they were almost sued for having the same name as someone else.

I looked up ORCO, and there are no active trademarks for ORCO that are registered as bands or for any kind of general merch like clothing, etc.

I would guess that was very similar to the Poptart Monkeys/Kelloggs fiasco. PTM had lawyers from a billion dollar corporate powerhouse breathing down their necks, (cease and desist documents, threatening letters and more), but they didn't back down. They are still using the name, and nothing ever happened. Actually they got tons of publicity over the whole thing, and it's possibly one of the reasons that they are still a popular band.

Corporate lawyers will threaten you with anything whether or not they have a legal leg to stand on. Idle threats from a lawyer can be intimidating and they usually work... It worked on ORCO.

[jim bagrosky]

Thanks Ron!