Intellectual property rights are especially important in the music industry. Musicians are creators, and we primarily think of their work as the songs protected by copyright law. But a musician’s brand is also important, whether that brand consists of a stage name for a solo performer or a band. Band trademarks and stage names have some unique issues of which performers in this industry should be aware.
Common Law Issues and Touring
In an earlier post, I discussed the differences between common law trademark rights and rights gained through federal registration. To summarize, you can get trademark rights to a name just by using that name. However, your trademark rights are geographically limited to the place where you are using the name. This can become a problem for performers.
Let’s say that you start a musical group and go on a tour of 10 cities across the country. Doing one show in each of these cities is probably not enough to establish trademark rights in any one of those cities. Acquiring the rights to use band trademarks or stage names in connection with live performances is tricky in this regard. On the other hand, if you are a local band or performer and play regularly in various venues in the same city, you may acquire trademark rights to your name in that city.
Most musicians are not going to be satisfied with the possibility that other performers could be using similar band trademarks or stage names across the rest of the country. But it also might not be feasible for a new performer or band to do the amount of touring that it would take to acquire vast common law rights. Federal registration can help, though.
Federal Registration of Band Trademarks
Fortunately, if you register your stage or band name with the U.S. Patent & Trademark Office you can obtain nationwide rights to that name. And you do not have to perform live shows across the country to receive this benefit. Although there is some cost associated with it, protecting band trademarks with federal registration seems like a worthwhile investment. If not, you could end up in a situation like my favorite band, The Dear Hunter, which is often confused with another band called Deerhunter. While I’m not sure which band came first, and they seem to have some kind of agreement in place where they peacefully coexist, it can’t be ideal in terms of trying to grow your audience.
When applying to register band trademarks or stage names, there is another important issue that often comes up. Most performers and bands provide both products and services under their names. The most common are musical recordings (a product) and live musical performances (a service). The Trademark Office categorizes these into separate classes. In order to have explicit protection for both musical recordings and performances, there is an additional fee. Moreover, you might also want to brand merchandise, which can add more classes. If you work with a trademark attorney, they can help you to prioritize if you are working with a limited budget.
Finally, registering band trademarks or stage names for sound recordings has an additional caveat. You need to make sure that you have use of your name with multiple recordings. Otherwise, your name may be treated as the title of a single work. Make sure that you avoid this if filing a Statement of Use or an In Use application.
Want To Ensure Your Band Name or Performing Name Is Protected?
Before you get the band back together, please call me at (480) 360-3499, email me at kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today. I look forward to speaking with you.
