FROM THE DESK OF

FROM THE DESK OF... SHELLY HARRIS

UNRAVELING THE RED TAPE

by: Shelly Harris / Entertainment Attorney

QUESTION:

I’m currently working on putting together a new band with two other long-time local musicians. We haven't played out yet, or put out any "product" so far, but right now we are seriously thinking about what band name we want to use in the future. The one we tend to like most is one that has been used in the past, briefly, by a semi-successful band that is now defunct, but we're worried about some kind of trademark violation if we do use it. Is it safe to use the name now that the other band no longer exists?

ANSWER:

It may be “safe” to use the name now, depending on a couple of circumstances. First you will want to check if the name was ever registered with the US Patent and Trademark Office in the first place. If it was, you will very likely find it still registered there, even if not in use. In other words, the former trademark on the name may be “Dead” –– as long as the name is not otherwise still being used in some commercial or public capacity by the band that first registered it, or by another band for that matter. (You should do a thorough search to make sure the name is in use but even if not currently registered.)

You can also contact the USPTO online or via phone if you have any remaining questions about a past or current registration of the name by another band or “musical group.”

If everything is clear on all fronts, you would eventually want to register with the USPTO yourself, if you do intend to go forward with the use of that name. However, it is best if you wait to register when you can prove current use (via ads, flyers, or other public advertisement of your use of the name), rather than register it for future use, since the latter would incur an additional $100 fee (in addition to the initial $335 registration fee) to update the registration if you do not actually wind up using it in public until a later date. (For more information, see www.uspto.gov )

[Note: Names are always changed in these Q & A’s; in addition, it is always in your best interest to consult an attorney of your choice directly regarding any particular legal issue or problem you might have.]

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