Music is art, but if you want to make money at it, you’ll need to view your musical career as a business, too. If you’re in a band, one of the most important things you can do for the group is trademark your name. Here are five things musicians need to know about the “art” of trademarking.
1. You Must Do Your Homework
Let’s say you and your pals have just formed a band. You come up with a great name for yourselves: The Raspberries. You do a quick Google search to double-check the name and discover that, unfortunately, The Raspberries name has already been taken. Eric Carmen fronted that group 40 years ago.
You brainstorm a string of other awesome names and check their availability on the Internet. Dead Kennedys? Taken. Foxy Shazam? Taken. Mott the Hoople? Taken. You finally settle on a name you can’t find anywhere on Google: The Purple Tigers. You drop about $300 on the filing fee for a trademark application with the United States Patent and Trademark Office, or USPTO, and wait for the good news on about your successful official registration.
Months later, you discover the USPTO has denied your claim. A band named The Purple Tigers already exists, even though Google didn’t point you to them. You’ve wasted money and time, and you’ve got nothing to show for it. An experienced trademark attorney could have helped you with thorough trademark searches to avoid this issue.
Key Takeaway: Make sure no one else is using your band’s name before you apply for a trademark. If the name is already in use, your application will be rejected. Just searching Google is not a full trademark search.
2. Trademarking Reduces Duplication Problems
Your name is Meg Trainor, and the year is 2010. You start a rock band and cleverly name it after yourself. You don’t bother trademarking your own name because you don’t see the need. As time passes, your band — Meghan Trainor — picks up more and more local gigs and fans. You record an album and become a hometown celebrity.
Come 2013, your musical career is sailing. You’re preparing to quit your day job and sign with an agent when you receive some terrible news — a 20-year-old singer from Massachusetts named Meghan Trainor just scored her first Top 40 hit, “All About That Bass.”
Trainor trademarked her name, and you didn’t. The legal advice is in; the mega pop star can’t force you to drop your band name because, technically, you arrived on the music scene several years before she did. But from now on, when you mention the name of your band, people are probably going to start humming “All About That Bass.” Here, the degree of trademark protection you missed out on becomes evident.
Key Takeaway: Trademarking is always a smart idea if the possibility of success exists in your future. Musicians aren’t usually lawyers, so consider enlisting the help of an attorney that understands trademark law.
3. Prior Use Trumps All
The year is 2000. You share an apartment with some music-loving buddies in Lincoln Park, Michigan. One day, you and the gang decide to form a band. You name your group after the city where you live: “Lincoln Park.”
Unbeknownst to you, the rock band Linkin Park had been rehearsing together since 1996, four years before you even conceived of your musical act. The band just released its first album, “Hybrid Theory.” You’d like to stop Linkin Park from absconding with your name and stealing your glory, but you can’t. Linkin Park existed first. Understanding the intricacies of trademark law, common law trademarks and service marks could have been beneficial.
Key Takeaway: When two or more non-trademarked bands share the same or a similar name, the one with the highest seniority usually wins and ends up with trademark protection.
4. You Shouldn’t Put it Off
It’s New Year’s Day, 2008. You resolve to finally start the a cappella boy band you’ve been dreaming of. You phone four college buddies who you know love singing as much as you do. They’re friends you met in your university’s glee club.
By February, you and the boys have become really serious about your a cappella group. The group sounds terrific, and local audiences love listening to you. You know you should apply for a federal trademark registration with the USPTO, but you can’t agree on a name. Weeks pass and, by the end of March, you finally settle on a moniker for your group: “Glee.”
You file for your “Glee” trademark on April Fool’s Day, then wait for the USPTO examining attorney to make her decision and get back to you. You and the boys are feeling hopeful; at least, until the day you turn on the television and catch the first episode of a new Fox drama-comedy called “Glee.” This highlights the importance of intent in the music industry, especially for bands and providers of entertainment services.
Key Takeaway: The trademarking process can take 13-18 months. It’s best to trademark your band as soon as possible.
5. Upholding Your Trademark is Your Responsibility
The year is 2014. You’re ecstatic because you just received notice that your band’s trademark application was approved. You’re now an official member of a trademarked group called “The Dopplegangers.”
You know you should make the effort to add the circled “R” trademark symbol to your album covers, T-shirts, and other merchandise. But you’re so busy practicing, booking gigs, and counting up your money, so you forget to do that. It’s just so great to be famous!
One day, you discover that another band is masquerading as you. They call themselves “The Dopplegangers.” They dress like you, look like you, and sing your songs. They’re making money hand over fist simply by riding on your coattails. You ask these imposters to cease and desist; after all, you own the trademark, not them. But with no official trademark sign on your sheet music, albums, or other property, it’s more difficult to prove your legality.
You’re not sure what to do now. However, one thing is certain — you potentially have a long, expensive legal battle ahead of you in order to defend your intellectual property. Consulting a trademark expert early on in your career can provide significant trademark protection for your musical recordings and band trademarks.
Key Takeaway: Once you get your registered trademark, leverage the symbol to your advantage and protect yourself by labeling your property.
Common Trademark Topics for Musicians
- Trademarking sheet music
- Trademarks and t-shirts
- Trademarking a song
- Trademarks for sounds
- Trademarking a stage name
- Trademarks for YouTube channels
- Trademarking social media usernames
- Trademarking a hashtag
Protecting Your Mark
Hundreds of thousands of amateur musicians wish they could make it in the music business. If you’re serious about creating a name for yourself and your band, set yourself apart from the amateurs. Take the time to learn about registering for a trademark with the USPTO. Be very careful, though; an unintended trademark snafu could cost you and your band mates a lot of time, money, and other resources. Time is of the essence when building your music career. It’s best to enlist the help of an expert.
