On the 4th Day of Music Law...

Music Branding 101 (Part Two) – The Importance of ®.

This is part two in a series on Music Branding. In Part One, “putting the “r” in band, we introduced the idea that bands need to be brands. In this part, we discuss the importance of obtaining national protections to your band, uh brand, name through trademark registration with the U.S. Patent & Trademark Office. Before we discuss steps to obtaining registration, let’s look at the why…

We’ve already established that bands need to start thinking about themselves as brands. That even with a record deal, publishing deal, corporate sponsorship, sugar daddy, you are in charge of your career and its longevity. Brand identity is important in and of itself. Protecting that brand through trademark registration is crucial. It takes a business savvy band, or a band with a solid forward-thinking manager, to make this a priority.

Consider this: You start your band in 2010, pick a name and begin playing out in your hometown. Then you start touring one region of the country in 2011; if another band (or music-related business) had already begun using the same or similar name in that region before you enter it, you can be prohibited from using your band name in that region. You can be prohibited even if the other band has not registered its name as a trademark. Both bands have acquired common law rights which means the first to use the name obtains rights to the name in the specific region of use. How much time and money have you already spent in the development of your mark? How much do you think it will cost you to buy out the other business so that you can continue with your expansion? The answer to both questions is likely A LOT!

Not convinced? Take the above scenario, and now assume you obtain federal trademark registration for your name after the other band began using the same or similar name in another region. Even with federal registration, you can be prohibited from using your mark in that region. This is because federal registration does not trump common law rights of a prior use of the name.

Let’s go one step further: Same scenario as above, but instead of you obtaining federal trademark registration, the other band obtains federal registration. Even though that band began using the name after you in a different region, if they file for federal registration before you, you will not only be prohibited from using your mark in the region where they have obtained common law rights, you will also be prohibited from using your mark every where else in the country outside of the area where you can claim common law rights. In essence, you will be locked in.

The list of potential pitfalls is endless. Imagine selecting a name for your band only to receive a letter a few months later demanding that you cease using that particular name because another party already has a federal registration for it. It happens all the time. You should be proactive – take the necessary steps now to start and develop your band’s identity. It will not only save you time and money in the future, it will establish a strong infrastructure for your band to leverage as it grows.

If you’ve already selected a name, and are adamant about not changing it, your best option is to file for federal registration, hope that you name is approved, and cross your fingers that no one has common law rights to a same or similar name for same or similar services. We strongly advise that all of our clients undertake a comprehensive trademark search and analysis to ensure 1) the federal registration is likely and 2) that once the name is registered, no common law uses will trump your rights. No matter how great the name you want to use may be, branding is as much a tastemaker issue as it is legal structuring of your business.

Stay tuned for Music Branding 101 (Part Three) – Steps to Obtaining Federal Registration.

Disclaimer: The materials contained in this blog posting have been prepared by Beame & Mencher LLP for informational purposes only and are not legal advice or counsel. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Online readers should not act upon any information in this posting without seeking professional counsel. The information contained in this posting is provided only as general information, which may or may not reflect the most current legal developments.

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