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Trademark

by Ben McLane, Esq.

A band contemplating a serious career in the business would be well advised to take the necessary steps to protect its name by obtaining trademark protection. That way, the act will not only be secure in knowing that it has acquired the right to the name, but also the artist will not be sued for infringing someone else's name.

A name used for entertainment services is actually known as a service mark. Although a service mark is akin to a trademark and is governed by the same law, a service mark is used to identify services offered to the public (e.g., live performances by a group). A trademark, however, distinguishes symbols used on tangible physical goods (e.g., a record or merchandise displaying a group name). Neither of the above should be confused with a copyright which instead protects works such as songs and sound recordings.

In the United States, as opposed to some other foreign countries, rights in a group name are usually created by use of the name, not registration. Therefore, the act must actively perform under its name, advertise under its name, and sell product bearing its name to the public. Nonetheless, it is still advisable to register the service mark with the U.S. Patent and Trademark Office in Washington, D.C. This not only allows the use of the symbol which gives notice to the public of your rights, it also will allow an artist to get an injunction and collect damages.

If the band cannot afford a federal registration, there are some things which can be done to protect the name. First, do a name search to find out if the name is unique. Some large libraries have a publication called (Index To) The Trademark Register. Or, one could check the Billboard International Talent & Touring Directory. Additionally, a person could order a name search report from a professional searching bureau for about $200.00. Such bureaus are listed in the yellow pages under "Trademark Consultants." If the name is free and clear, the letters T (or ), although unofficial, can be utilized to indicate rights to an unregistered service mark. Finally, the most important thing an act can do is to use the name publicly and consistently.

Assuming the act will seek a federal registration and has done a thorough search, the application procedure basically involves submitting (1) the appropriate application form, (2) proof of public performance (e.g., advertisement or promo material for the public performance), and (3) the filing fee of approximately $245.00 (subject to change).

In a group situation, it is also important to come to some agreement in writing as to who owns the group name, and what will happen if a member leaves the group. The lack of such an understanding has led to a plethora of lawsuits.

The purpose of this article was to familiarize an artist with the way to protect one of the most important attributes that the public will associate with an act: the name. Since trademark matters can be somewhat complex, it might be wise to consult an attorney who can assist with the search and registration process.

Copyright 1998, Ben McLane
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