By: Adam Freedman & Alyssa Minnec
DISCLAIMER: This article is intended for informational purposes only, and is not intended to, nor does it create an attorney-client relationship. 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.
How Does a Trademark Protect my Brand?
A trademark is a word (or words), logo, or symbol that identifies your brand, and the primary purpose of trademark rights, in general, is to protect both consumers and brands from confusion as to the source of a good or service. Trademarks provide owners with exclusive rights to the name, logo, or symbol in their respective industries.
For an artist, your brand is your artist name, and this actually comes into play in two main situations for artists: 1) another artist or company in a related industry is using the same name, or 2) someone is selling bootleg artist merchandise.
Trademarks provide protection where there would otherwise be a high likelihood of confusion. However, that’s unlikely to occur with another use of the name in a completely unrelated industry. For example, if you find a construction company that happens to use your artist name, it will be hard to argue that it’s infringing on your use of the name, because will a reasonable person really think that you’re associated with the construction company? Most likely not.
Do I Have Rights Without a Registered Trademark?
The Trademark to your artist name has 2 main benefits: 1) it provides you with the best evidence that you have exclusive rights to the name, and 2) it allows you to sue for statutory damages (more money). However, through simply using your artist name “in commerce,” you already have a “Common Law Trademark.”
However, Common Law Trademarks are enforceable only in the limited area where it has come to be identified with the user’s goods or services. Therefore, if you are not already using your name nationally, on a large scale, you may find that you actually only have rights to the name in your hometown or home state, and you can’t actually prevent someone else from using the name.
Ultimately, registering your artist name in each of the relevant trademark classes is the best way to prevent usage of your name in the future by another artist.
What are Trademark Classes?
There are 45 broad Trademark classes that your mark could fall into and be registered under. Classes are organized by “goods” and by “services.” Artists eventually want to file for trademark protection in the following 4 classes:
CLASS 041- Protection for Your Live Performances. This class includes: Entertainment services, namely, live musical performances, live music concerts, personal appearances by a musical group, arranging and conducting of concerts, presentation of live performances, modeling for artists, movie studios, music composition services, music halls, nightclubs, orchestra services, organization of shows, organization of balls, party planning, photographic reporting, photography, production of shows, production of radio and television programs, providing amusement arcade services…
CLASS 009- Protection for Your Music and Videos. This class includes: Media content, animated cartoons, cinematographic film, CDs, downloadable music files, downloadable image files, digital media, music video recordings, video recordings featuring music…
CLASS 025- Protection for Merchandise. This class includes: Most types of clothing, included but not limited to bathing trunks/bathing drawers, bathing suits/swimsuits…Hats, Shirts, coats, collar protectors, collars /shoulder wraps, gloves, headbands, heelpieces for stockings, hoods [clothing], hosiery, jackets , jerseys…
CLASS 016- Protection for Posters/Stickers. This class includes works of art and figurines of paper and cardboard…aquarelles/watercolors [paintings]/watercolors [paintings]…Paper, cardboard and goods made from these materials, not included in other classes; printed matter [Posters]; bookbinding material; photographs; stationery…Stickers
Unfortunately, there is a $225 filing fee per class, so if you have a tight budget, you might still want to register your trademark in 1 of these 4 classes. Most people are generally aware that Trademark infringement lawsuits can lead to enormous judgments, so having a registered trademark in any of these classes will most likely be enough to scare a small artist from using your name or an individual from selling bootleg merchandise.
However, each distinct class does have a purpose and should be registered under when possible. For example, what if you’re shopping at the mall, and find a clothing brand with your artist name? Registering the trademark for your artist name in Class 025 (Clothing) will provide you with the best evidence to protect against that.
However, to prove infringement, you nevertheless have to argue that there is a high likelihood of confusion between your brand and the other usage you find. Even if you have a registered trademark, it’s most likely impossible to argue that a lawn care company with the same name is actually infringing on your trademark (even if you registered in all 4 classes). There’s simply no way that an artist in the live entertainment industry could be confused with a lawn care company upon a Google search. In this case, these two brands do not have a similar purpose and are unrelated.
When Should I Register my Brand as a Trademark?
Technically, it’s never too early to register your brand, but it may not be worth the investment until you’re at least somewhat established. Considering the filing fees are $225 per class, and legal fees can be an additional $1,000+, you don’t want to spend this money, only to end up changing your artist name because you don’t like it anymore.
Once you’re content with your brand, start with what you can afford and work your way up to the goal of registration within all four classes.
If you haven’t chosen your brand or performance name yet and want to see what’s available, you can perform some targeted searches to see if your name has been previously used or registered. This includes searching the Trademark Registration Database on the US Patent Office website for registered trademarks, as well as for other uses of the name on google, social media, domain names, as well as for any competition on music streaming platforms.
Nevertheless, the more unique the name, the fewer problems you’ll have in the future dealing with having to police against other uses.
Who Can Help Me Register my Brand as a Trademark?
Attorneys experienced in trademark applications are the best route to help you get the most protection. Correctly protecting and registering your trademark involves specific legal decisions that you’ll want to be performed adequately. The way that you present your brand on the application will either strengthen or weaken your scale of protection, so hiring an attorney is a smart investment for your brand that will make sure everything is properly covered from the start.
Contact us at the Law Office of Adam C. Freedman, PLLC to learn more about Trademarks and the specific issues you might run into