1-10) Explain how to register a trademark or servicemark.

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.

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