How Do I Protect My Band’s Name?
While copyright protects creative works like music and literary works, trademark protects a name in business. However, while a copyright application is relatively cheap and easily filed with the United States Copyright Office, a trademark application can be costly and is filed with the United States Patent and Trademark Office (USPTO). Technically, a trademark protects a name used in the sale of goods and a service mark protects a name used in the sale of services. For purposes of this article, “trademark” refers to both trademark and service mark.
Before you start thinking of protecting your band name it is highly advisable to make sure you’re not using someone else’s. Think of the old adage “an ounce of prevention is worth a pound of the cure.” Although it’s impossible to know every band name from Coral Gables to Seattle, you should still employ some due diligence to avoid the obvious infringements. A simple Google search, while not 100% absolute, can give you a good idea as to whether your band name is already in use. Try also a basic search at uspto.gov. If you’ve got the money, you may consider employing a trademark search service to provide you additional assurance.
Once you’ve cleared your name, the first step in protecting your name is easiest – just start using it. Playing in your garage does not count. You’ll need to book shows, sell CD’s and keep documentation of everything. You will acquire what is called a “common law” trademark from the date you start making commercial use of your name. While the common law trademark can protect you from infringers, it does not provide the same protections that a federal trademark can give you.
To get a federal trademark, and as stated above, you’ll need to file an application with the USPTO. Can you do this yourself? Yes. Is that advisable? No. While the online application process at www.uspto.gov is fairly intuitive and engineered for use by anyone, the actual, legal requirements for a trademark can be very complex and nuanced. The application must include a specimen, or evidence of use, and is then reviewed by an examining attorney with the authority to deny your application or (initially) approve it. An initial denial usually comes in the form of an office action, in which the examining attorney will challenge the application and will seek a response from you. If you do not succeed at this initial stage, there is a process for appeals that can be lengthy and expensive. Some applications, however, will pass this initial stage and your application will be published by the USPTO for public comment and response. Provided you pass through this stage, you will finally have acquired your trademark. It follows that while a lay person might be able to meet the initial requirements for the application, it’s the appeals process that makes it extremely difficult to manage without the assistance of legal counsel. If in doubt, seek a consultation from an intellectual property lawyer before you start the process. It may cost some money but again, the prevention costs much, much less than the cure.