FROM THE DESK OF

FROM THE DESK OF... SHELLY HARRIS

UNRAVELING THE RED TAPE

by: Shelly Harris / Entertainment Attorney

QUESTION:

I started up a band about six months ago with three friends from local high schools. So far we've basically just been rehearsing, and playing to a few friends for free, but we hope to get a few bookings this summer. We do have a band name in mind, and, as far as we can tell, no other bands are using it, so we're wondering if it is absolutely necessary to trademark the name. We don't really have that much money right now, and one or two guys may have to leave the band in a year if they go too far away to college.

ANSWER:

In a nutshell, it is not an absolute requirement to officially trademark your name at any point, although it is a prudent thing to do if you plan on investing any time and money into building a reputation using the name (and especially if you plan on selling any kind of tangible products such as CDs, etc., with the name).

If you are indeed the only band currently using the name in the U.S., and you can prove via flyers or other types of dated advertisements that you were using it first, you can later go back and file an "official" trademark with the USPTO after you are making more money as a band, or when you want to release a CD or otherwise invest time and money into your band's name.

Keep in mind that you will be already trademarked (actually service marked) when you perform in public (again as long as there is hard copy proof), but the filing with the USPTO puts others on notice of your first use and it also allows you to prevent or enjoin any other band from using the name as long as you were first in time.

[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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