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Names Titles - Trademarks and Copyrights
By Nancy VanReece - 05/21/2001 - 01:13 PM EDT

2001, Nancy A Reece & Duff Berschback

QUESTION #1:

.... I hope to eventually record under my own label (and would like to publish under this name as well). What do I do to protect the name I have come up with for it?

.... how do you register a band name so no one else can use it?


ANSWER:

FROM DUFF:
Technically, you're going to go after a servicemark, not a trademark, since you're not selling goods, but services (although you'll apply separately for trademarks in connection with sale of merchandise). You acquire rights to a mark by having the public associate it with the services you're hawking--the rights are based upon _use_ (As opposed to copyrights, which are based on fixation. The exception is an "intent to use" application at the federal level, discussed below). As with copyrights, registration gets you other associated rights and remedies, but the core of trade and servicemarks is use. For example, you've really got to go out of your way to "abandon" a copyright--not so with a trade/servicemark -- mere nonuse for a period of time affects your rights.

The first step in securing band name rights is to perform a search of the name to establish (never with perfect certainty) that no one else is using it. Billboard has a publication called the "International Talent and Touring Directory" which lists touring bands. A search at the federal level is next--that costs around $1000 for a fairly comprehensive search. (As an aside, major labels are very sensitive to this topic--they don't want their national distribution roll out to come to a screeching halt because
a garage band from Knoxville claims prior use of the mark. So they'll usually pay for the search--of course, it's recoupable). If your search reveals someone else using the same name, you can either change your name or negotiate to buy them out (hopefully, it's apparent that this process should take place relatively early in the band's life). The next step is registration--both at the state and federal level. If you're a Montana band only, you can register with Montana. It used to be that you had to play a gig in Wyoming to make a federal registration, but now if you can show you *intend* to play across state lines, you can file an "intent to use" federal application. In any case, registration affords you certain rights and remedies that come in very handy, not the least of which is notice to anyone who searches for your name that you have a claim to it. The U.S. Patent & Trademark Office has all the necessary forms for registration--they're really quite fun (not). Expect about a year to go by before you get a piece of paper stating: "you've got rights".

FROM NANCY:
Duff has some excellent points and suggestions concerning the appropriate way to trademark or servicemark a band or group name.

In one situation in my past I managed a band who, at the advice of counsel, simply started identifying the "TM" notice on all printed material from banners on the stage, on all merchandise from stickers to posters and everything in-between. The "R" with the circle around it was not use because the trademark had not yet been registered. However, the "TM" was employed to inform anyone else
using the name of the intent to register.

I would urge any group wanting to take step on name registration either for a servicemark or a trademark (or both) to first off be sure they have a group agreement in writing clearly stating
ownership of the name.

If you form a corporation, a limited liability company or even a general partnership then it is good to then claim the name as property of that entity. For example "XYZ" is a trademark of "XYZ Group, LLC". This will keep any record company from assuming ownership in the name and will help facilitate clearly defined lines of use in the future when someone from the group leaves.


QUESTION #2:

..... I have a question about stage names. Is there such a thing as copyright infringement if you choose a stage name from someone else's copyrighted work? Example: the magician David Copperfield. Maybe a bad example since Dickens' book is so old, but what if someone wanted to use the stage name Harry Potter, or even Elmer Fudd? Does the creator of a fictional character have the sole right to that character's name?

ANSWER:

FROM DUFF:
Is there such a things as infringement if you infringe? Yes. Technically, it'll be trademark/servicemark infringement, but the result will be the same-a cease and desist letter from the owner's attorney, followed by a lawsuit summons if you don't repent and agree to sin no more. Choosing a public domain stage name is another matter. So, for example, you could call yourself "Achilles" without too much worry about Homer's heirs coming after you.

FROM NANCY:
I think it is important to be as creative as possible when choosing a name. Ultimately, it is the true test of a writer to come up with a single word (or two or three) that clearly defines what you are and what you are trying to say along with a name that appeals to the audience you want to attract.



TO VIEW OTHER QUESTIONS AND RESPONSES, SEE NANCY'S "COPYRIGHT & PUBLISHING Q&A" ONLINE AT http://www.musesmuse.com/pubq-a.html OR DUFF'S "THIS LAW GOES TO 11" COLUMN AT
http://www.musesmuse.com/songlaw.html.


Please note: These two received a *lot* of e-mail in a month. If you sent in a question but have not heard a reply, it's very likely it already *has* an answer online. It's always a good idea to thoroughly look through the Q&A's online to see if your question has already been asked before you send in a request. Thanks!


ABOUT NANCY A. REECE:
Carpe Diem Copyright Management's owner and president, Nancy A. Reece has been involved in the music business since 1983. She was the president of an independent advertising agency for eight years
as well as a successful personal artist manager for nine years. She represented the careers of several recording artists and songwriters including those with EMI, Zomba and Liberty Records as well as Benson, Starsong, WoodBridge, Temple Hall and N'Soul Records. She also represented, for a number of years, a Grammy and Dove nominated record producer. Reece has won awards of excellence in print magazine advertising and has been named as one of 2,000 Notable American Women (1995) as well as being listed in the International Who's Who of Professional and Business Women (1993). She was also named Cashbox Magazine's Promoter of the Year (1989). In addition to her work at Carpe Diem Copyright Management, Reece is a Licensing Executive specializing in Corporate and Healthcare compliance in the General Licensing Department at BMI.

ABOUT DUFF BERSCHBACK:
Duff Berschback is an entertainment lawyer in Nashville, TN. He represents singers, songwriters, publishers, and other assorted industry types, with a particular focus on digital entertainment and new media. He spends spare time hanging with his family, playing with his Lab, reading, and, of course, listening to music. A bit scattershot in his musical taste, at any given time he can be found listening to Bach or Martina McBride, Wagner or Robert Johnson, Muddy Waters or (old) U2, Dire Straits or Dwight Yoakum, The Rolling Stones or Frank Sinatra, and (old) Van Halen or George Winston, among others.




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