A band name can be registered as a trademark even if the name could be offensive to some.Photo: Eerie Canal, the author's band, early 1990s, Detroit. Photo by J.D. House.
Band Name Trademark Registration Protection Available Even When Offensive
A band, rapper, singer-songwriter, or D.J. may now register their name or moniker as a Federal trademark even if it would be classifiable by some as "immoral" or "scandalous."
Such classifications, as well as the notion of "offensiveness," are, obviously, entirely viewpoint-based. What your grandmother finds "scandalous" is very likely to be very different from what I would.
Offensive is in the eye of the beholder, in other words. The First Amendment does not allow a statute to be wielded by the holder of one viewpoint against the holder of another.
Trademark Registration for Bands: The Supreme Court's "FUCT" Decision and Immoral or Scandalous Trademark Registration
Thus, last year, the US Supreme Court invalidated the provision of the Federal Lanham Act ("the Trademark Act") prohibiting registration of "immoral" or "scandalous" band names or logos or other proposed trademark registrations.
Although the argument in this case concerned the name of a fashion designer's clothing line (the "FUCT" in question), it is applicable to band names as well.
The Court noted the US Patent and Trademark Offices ("USPTO") had wielded this statutory provision very inconsistently, allowing the registration of trademarks with, for example, pro-Jesus messages, while denying trademark registration applications with contrary messages or verbiage.
This is not permissible, Constitutionally, the Court ruled. Statutory provisions must be "viewpoint neutral" and cannot be used by the government to endorse or quash any specific message.
The Government argued that the statute could be limited to simply denying registration of proposed trademarks that are "vulgar" (lewd, sexually explicit or profane), but the Court explicitly denied this suggestion, noting that the statute actually says something totally different.
This decision can be viewed as a companion decision to the 2017 "Slants" case, in which the Supreme Court also invalidated the Lanham Act's prohibition of the registration of trademarks that "disparage ... or ... bring into contemp[t] or disrepute [any] persons, living or dead."
That case specifically revolved around a band's name, The Slants, a group of Asian-American musicians using what some have considered a racially derogatory term as a band name in order to draw it out in an ironic manner.
Thus, there is now—unless Congress intervenes to re-draft a Constitutionally permissible statute—no requirement that a band name be pure as the driven snow in order to obtain the protection of Federal trademark registration.
That is, so long as the band name meets the other eligibility criteria for trademark registration.
Band-Name Trademark Registration: General Requirements
We discuss in detail the general requirements for the registration as a trademark band and musician names and logos on our main Bands and Musicians Trademark Registration Service page here.
However, in summary, any trademark must:
- Uniquely identify the "product" or "service" with which it is associated to US Consumers
- The product or service (albums, CDs, t-shirts, etc.) must be in "interstate commerce" (i.e., being actively sold across state lines)
- And must not "merely describe" the the services or product which the band name is identifying to consumers (e.g., a rock band named "Michigan Rock Band" would likely not fare well with its application)
- And there must be no likelihood of confusion with any existing trademark registration. (Don't call your band "Lead Zeppelin!")
Further, bands and authors have additional hurdles or considerations.
As you might think from the bulleted list above, it is important to keep in mind that trademark protection, unlike copyright or patent protection, exists to protect consumers.
Trademark registration is not a form of protection aimed at protecting your creative content or expression.
Its aim is to offer consumers a guarantee of what they are buying and from whom.
Individual album or book names or titles are not registrable on their own.
Bands and musicians must have released a series of musical collections (albums, CDs, downloadable or streaming compilations, etc.) under the same name-to-be-registered.
Merchandise is a separate International Category and possibly a separate trademark application than the band's name itself. (A search of the Federal TESS Trademark database reveals that the terrible band Def Leppard owns around 7 different trademark registrations: 1 for the service of performing, 1 for merchandise, 1 for this, 1 for that—etc.)
Who owns the trademark? The bass player? The whole band? If you haven't incorporated your band or formed an LLC for the purpose of trademark registration, you may need to do that. What happens when you fire the drummer? Is he still an LLC-member?
Bands pose some particular challenges when it comes to intellectual property ownership.
Band Name Trademark Registration: The Bottom Line
The bottom line is that with regard to trademark protection of your band's name, it doesn't pay to go cheap after investing all of your resources and time into putting together a band that A) won't kill each other; and B) makes music good enough that people will pay for it.
Attorney John Hilla is not just an trademark lawyer but a musician, a singer-songwriter and the former bassist with multiple Midwest post-punk bands over the past 30 years.
We are located in the Motor City, but our trademark practice is national. We represent clients for trademark matters anywhere in the United States and beyond.
Virtual consultations offered and affordable flat fees.
Contact Us Here to schedule an initial consultation appointment at no charge to discuss your trademark needs.