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December 29, 2022 | EntertainmentFrom the blogTrademark

Should Musicians Register Their Trademarks?

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Carlianna Dengel

Associate Attorney

You and your bandmates have been gigging for years and you’ve built up your fanbase.  You’re finally offered a coveted spot at a sold-out festival when you learn another band playing the festival has the same name as your band!  Unfortunately, this situation is all too common but luckily, it is also completely avoidable.  Whether you are a band or a solo artist, registering a trademark can help you protect your name, your brand and your fans.

What is a trademark?

A trademark is a word, name or symbol used as a source identifier.  Trademarks help consumers to distinguish between competing goods or services.  As an artist, trademarks allow listeners to not only identify your music, but also your merchandise, albums and overall brand.

Typically, trademarks must be registered under at least one class of goods or services in that the mark is used in a specific industry or used to identify a specific product.  Most musical artists will want to file in one or all of the following classes:

  • Class 009 – protection for music and videos
  • Class 016 – protection for posters, stickers, or other works of art containing your mark
  • Class 025 – protection for merchandise containing your mark
  • Class 041 – protection for live music performances and concerts

You can register your mark in as many classes of goods or services as you wish, as long as you are using or intend to use the mark for the stated purpose.

Do I have rights to my stage name or band name without a registered trademark?

When you use a name or a mark without a registration, you still have common law rights to the name.  However, these rights are only enforceable in the geographic area where you are using the mark.  For example, if you are a New York City based musician using a stage name only in New York, your trademark rights in that stage name are enforceable only in New York.  You could not assert your rights to your stage name against someone using the same name in Nevada.  Thus, these rights are far more limited than the rights granted for a registered trademark.

What are the benefits to registering a trademark?

When you register a trademark, you have exclusive use of the mark within the class of goods or services for which the mark is registered.  Let’s say you register your band’s name under Classes 041 and 025.  This means that other people cannot use the same name to play gigs (Class 041) or sell t-shirts (Class 025) using your band’s name.  Moreover, with a registered mark, you can actively prevent other people from using your name.

On the other hand, registering a trademark can also safeguard you from infringing on an existing mark.  Further, registering a trademark protects your brand or performance name by preventing consumers from confusing your brand or performance name with that of another.

Are there any drawbacks to registering a trademark?

Trademarks have to go through a fairly long review process with the United States Patent and Trademark Office (USPTO).  The registration process can take anywhere between twelve to eighteen months.  Additionally, trademark applications are public records and anyone can view the applications.  This means that if you are registering a mark in anticipation for an upcoming release that you would like to keep under wraps, the public can freely view your application and make assumptions about the upcoming release.  While these are certainly important considerations, the benefits of registering a trademark far outweigh any drawbacks.

How do I register a trademark?

You should register your mark as soon as it is in use or as soon as you intend to use it.  To register a trademark, you must first search the USPTO’s trademark database to make sure someone else is not already using the mark in your class of goods or services.  If no one is using the mark, you must file an application with the USPTO.  The application process can be quite complicated, and it is helpful to have the assistance of a qualified intellectual property attorney.  Not only is the application process intricate, but trademarks must be maintained with the USPTO through various filings every few years.  Investing in a reputable trademark maintenance program can help ensure you do not lose your mark after it has been registered.

Photo by Vidar Nordli-Mathisen on Unsplash
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