Trademark Protection for Bands and Musicians in The Metro Detroit Area
Michigan Musicians and Bands Need Trademark Protection, Too!
Musicians and bands, like any other money-earning venture, need trademark protection, too. From the standpoint of interstate commerce and the goal of the (Trademark) Lanham Act of guaranteeing the quality of the services and goods being delivered to consumers, there is no essential difference between selling a widget in a retail store and selling a song to be downloaded in MP3 format or streamed via a service like Spotify.
In other words, your band is a business, like any other. And, given that a band’s name is its very identity, its brand needs protection more than garden-variety businesses do.
Protecting the performing name of a musician or a band’s name, however, carries some special considerations.
Trademark Protection Extends to Goods and Services, Not Designs
First, it is important to remember that, unlike patent protection or copyright protection, trademark protection is extended to protect the reputation of a good or service in the stream of commerce. There is no inherent right to trademark protection by virtue of coming up with an original design or creative work.
Trademarks are approved by the US Patent and Trademark Office (USPTO) when the applicant successfully establishes that the name or logo has been used in interstate commerce to represent a specific good or service from a specific source.
It is therefore probable that a band or musician must separately apply for trademark protection for every type of good produced: recorded music, live performance, and merchandise.
With regard to protecting recorded music, the USPTO requires that a musician or band have released a series of creative works (CDs, albums, downloadable or streaming compilations, etc.) under the name-to-be-trademarked. A single album won’t be accepted.
Live performances (only) are considered by the USPTO subject to change or alteration with each performance and are also not accepted for the purpose of trademarking the albums released by the band under its name.
However, flyers or promotional materials are acceptable “specimens” in a trademark application demonstrating a band or musician’s performance business for the purpose of trademarking the performance name in that context.
Merchandise such as t-shirts, caps, beer cozies, and whatnot are trickier propositions. A t-shirt with the band’s logo emblazoned upon would not qualify for trademark protection. What is the good the quality and source of which are guaranteed to the buying public in the case of a t-shirt? The brand on the hang-tag is like to be Hanes or some other clothing manufacturer. The band’s name would need to be on the hang-tag to make the t-shirt a good that can be trademarked. It would have to be, say, a Led Zeppelin brand t-shirt, not Hanes.
Who Owns the Trademark?
Second, a trademark registration must have an owner. That owner is either an individual applicant, a group of individual applicants, or a single corporate entity (corporation, LLC, and so forth). That being the case, a band in particular must consider whether all current band-members will be co-owners of the mark and what would happen if one of those band-members quits or is fired. That member will continue to have influence over the use of the mark for the life of its existence.
Should the band form a corporation to own the trademark if they have not already? That is a question that will have tax and other legal implications that should be considered in consultation with an attorney.
Solo Musicians: When the “Band Name” Is Your Name
Additional considerations flow from the use of a person’s actual name as a performance name, as in the case of most solo artists (even those using stage-names, like Bob Dylan). Or when the band is named after an individual, a’ la Van Halen, Danzig, or Bon Jovi.
In such circumstances, the name may still be trademarked, but the USPTO will question whether the individual after whom the act is named has given consent to its trademark—even when that person is the musical performer or a member of the band in question.
The application for registration in that instance must include a proper Statement of Consent.
This will also be required when a logo features a likeness of a person.
Trademark Registration for Musicians and Bands: The Bottom Line
The bottom line is that trademark registration for musicians and bands require specific considerations that other businesses do not. While it may be less expensive to fill out a trademark registration application printed from some online source oneself, retaining a knowledgeable Michigan trademark registration attorney will pay dividends in the future, when, just as your act is taking off, some other band using the same name in another city garners more notoriety just a little more quickly.
Who was the first to use the name? Your trademark registration number with the USPTO will answer that question and resolve any dispute.
Attorney John Hilla, is not just a lawyer: he is a musician himself, a singer-songwriter and the former bassist for The Onions, King Tammy, Eerie Canal, and Tabla Rasa. He understands the needs of musicians, the business of music, and the difficulty in keeping a good band together against long odds.
We offer affordable flat rates to musicians and bands. Your success is our passion.