Let me point out something that should sound like a given: every aspiring artist or band should have some means to distinguish themselves from other artists or bands. Most artists and bands, even when they believe they have made such an impact fail to secure that distinction with a procedure that legalizes their uniqueness: trademark registration.

A trademark is, literally, a “mark of trade”. It is a graphic depiction--a name, drawing, logo, unique spelling, etc.--that is used to set apart competing interests in the marketplace so as to avoid confusion by consumers. Trademarks usually protect tangible items--items which can physically be touched-- such as a chair, car, or computer. When it comes to providing a means of distinguishing between, for example, those who provide intangible services--such as upholstering a chair, repairing a car, or programming a computer--a “servicemark” is then used. A servicemark is what musicians would use to protect their unique and distinctive style of playing.

According to the United States Patent and Trademark Office www.uspto.gov), a trademark or servicemark is only considered protected when actually utilized in commerce. For example, a band cannot get protection on a name they are planning on using at some later date; they must actually have the name in use before that protected status can be conferred upon it. This differs from copyright law in that an item is NOT protected the instant it is created. Where trademark law and copyright appear similar is that registration in either instance gives an added layer of protection, a layer that would come in handy if and when a violation occurred resulting in legal action.

 A trademark or servicemark is also established based on “territory” and “priority” meaning where was it used first and when. This means that if your band has been performing in the great state of Michigan as “The Desperations” since July of 2000, a band in Alaska with the same name which has been performing since 1994 could safely--and legally-- use the same name since the territory you perform in is far removed from that of the competing band. Where a problem might arise is when the Michigan “Desperations” become a national act and the Alaskan version complains. The Alaskan band could file a lawsuit to prohibit the Michigan band from using that name since they have established prior use of the name since 1994. Moreover, the Alaskan band could stop any other band from using similar names like “The Desperados”, “The Desperates”, “The Despicables”, etc. if they could convince a court that the similar names could cause confusion in the marketplace.

Registration of a trademarked name comes in handy here because it establishes when the applicant first applied with the US government for protection of the mark. If the Alaskan band had not registered the name but the Michigan band did, the latter could enjoin (stop) the former from using the name, even though the former used the name first.

To prevent a situation like the above example, at the USPTO site there is a search engine entitled the Trademark Electronic Search System (TESS) which lets the applicant know if a proposed name is in use already. Although this is fast and relatively easy way to research a name, USPTO advises to have a more thorough search done using an attorney familiar with trademarks and servicemarks. TESS only reviews those who have taken the time and expense to register a name; it does not give information on those who use a name but have not filed it  with the government. In addition to TESS, there are several websites such as bandname.com which do a similar function, but as with TESS, they are by no means thorough.

As mentioned before, copyright laws and the procedure to register a copyright are vastly different from trademark laws and registration. This is evident when one realizes the expense involved in properly researching and registering a trade- or servicemark. If a band hires an attorney to do a thorough search of the proposed name, the fee an attorney may charge could range from a few hundred to a few thousand dollars, depending on how much time the attorney takes in researching the name. Further expense is accrued when the registration information is finally submitted to Washington. Fees currently hover around $350. These costs are the number one reason that many bands and artists do not register their names for protection, a move which could potentially

be disastrous if they are forced to change their long-held names due to a lawsuit from another band or artist.

For those musicians starting out who have at least done a nominal search of a name using TESS or other websites and have found no competing or similar names, they can alert the rest of the world of their usage of a particular name by using the letters “tm” (or “sm”) next to their group’s name or logo. These letters inform all who may be interested that the name or logo is being claimed as a means of conducting commerce, and therefore should not be infringed upon. These letters, however, have no legal protection. When the band finally registers the name, the USPTO gives them permission to alert the world of this legal protection by using the letter “r” in a circle next to the name. This is another way that copyright is different from trademarks. A person writing a song can use the letter “c” in a circle without registering the work with Washington and still be protected by the full letter of the law. No one can use the letter “r” in a circle legally without first registering the work with the USPTO.

For bands starting out, it is best to get as much information about trade- and servicemarks before attaching themselves to a name. This advice applies even more so if a particular logo is being used. Drawings could be viewed very subjectively by someone and that person could claim that it causes confusion with an already established logo and file suit. Bands and artists should consult with an attorney who specializes in trademarks before proceeding any further. It would be a shame to have to throw out years of image-building--and possibly fan support since the band now has to alert them of their new name--because a band is forced to discontinue using a name or logo. The money invested now in establishing your uniqueness and distinctiveness is nothing compared with having to do it all over again.