Musical artists’ stage names or band names often end up as one of their most valuable assets, and the last thing an artist wants is to be forced to change his or her name just because he or she did not do his or her due diligence. Like “brand names,” stage names are used to distinguish one artist’s identity from another, without having to listen to each of their music side by side. Fortunately, stage names and band names are protectable under Trademark law, yet many established artists and bands neglect the process of protecting these assets.
What is a Trademark?
Trademarks protect names, terms and symbols that are used to identify the source of goods and/or services on the market. Trademarks have enormous value to their owners because they allow consumers to be able to tell them apart from competitors, and to protect the goodwill, or “brand equity,” that they have established amongst their audiences. Customers or users of a brand will come to expect a certain quality and/or style, so Trademarks serve to protect an owner against someone else using his or her Trademark, on an inferior good, thereby harming his or her brand.
However, in the case of artist and band names, it is more likely that a 3rd party is trying to benefit off the audience that an artist or band built for itself, without permission, and Trademarks entitle their owners to police against all such unauthorized uses. A common example of Trademark infringement in this context is people selling bootleg merchandise bearing an artist’s name. People may purchase such merchandise because they think the seller is affiliated with the artist or band, when in fact the seller is wrongfully benefitting from all the groundwork the artist or band had put in to reach this point.
Why Register the Trademark?
US Trademark law automatically entitles artists to certain rights simply by being the first to use the mark in actual commerce, however, actually registering a Trademark serves a few important purposes. First, registration gives “constructive notice” to subsequent bands that you have the rights to a name, and provides the best evidence of your use of the mark in commerce. Secondly, U.S. Trademark registration allows you to sue in federal court for Trademark infringement. Otherwise, you may be able to still sue in state court, but your Trademark may only provide protection in the geographic area you actually used it in.
To illustrate, take for example a band in New York and a band in Los Angeles with the same name, neither having gone on the road, and neither having taken the time to register their Trademark. Each band may be able to protect against the other in their home states, New York and California respectively, but that does not account for the other 48 states. However, most sales and commerce take place on the Internet, so neither artist will likely be able to actually prevent the other from selling its music in the other band’s home state.
The US Patent and Trademark Office (“USPTO”) categorizes all goods and services into various Trademark classes, and a registration in a particular class covers uses of your Trademark only in connection with that particular good or service. The classes number 01–51, but the relevant classes for artists are:
· Class 41 — Live entertainment services
· Class 9 — Recorded music in various formats
· Class 25 — Clothing bearing the band’s name and/or logo; and
· Class 16 — Printed goods such as posters, stickers and event programs
The classes are listed in order of priority for most musicians, and one does not have to register a Trademark in all of them immediately. However, the Trademark will only be protected within the classes for which he or she does register. As of 2015, the filing fee for a Trademark ranges from $225-$325 per class, so registering a Trademark in all 4 classes can become quite costly.
Copyrights vs. Trademarks
I have found that another major source of confusion in this area is the difference between Copyrights and Trademarks.
Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, and other artistic works, both published and unpublished. Band names, business names, and titles are not on this list.
Trademarks usually consist of a name, logo, or slogan that help to identify the source of goods or services. For example, when you see the “golden arches” you immediately think of McDonald’s, and their burgers and fries. When you hear the name NIKE, you probably think of sneakers, or other apparel. Trademarks protect against others using a confusingly similar mark (your name or logo), but not to prevent others from selling the same good or providing the same service, using a different Trademark.
Filing Your Trademark Application
I highly suggest engaging a qualified Trademark attorney, because this is an expensive process that may have implications far down the line. The process takes approximately 18 months, if there are no issues with your registration.
Your stage name carries with it your reputation as well as all of the goodwill you have built throughout your career, therefore, you should take the necessary steps to protect it. Nevertheless, most artists choose not to worry about this until it’s too late. It would be far less costly to change your stage name now rather than working to grow your fan base, only to run into Trademark issues later on, and having to change your band or stage name and rebrand, simply because you did not do your due diligence.
DISCLAIMER: This article is intended for informational purposes only, and is not intended to, nor does it create any attorney-client relationship. To be clear, this is ATTORNEY ADVERTISEMENT, and THE CHOICE OF A LAWYER IS AN IMPORTANT DECISION AND SHOULD NOT BE BASED SOLELY UPON ADVERTISEMENTS. The content provided here is not intended to communicate or imply any future results or success. I strongly recommend that you speak with an attorney regarding the specifics of your case.