FROM THE DESK OF

FROM THE DESK OF... SHELLY HARRIS

UNRAVELING THE RED TAPE

by: Shelly Harris / Entertainment Attorney

QUESTION:

I have a band and recently I noticed that there is a band in another state using the name.

When I contacted them about this name issue, they claimed I cannot copyright a band name, and that they can use it all they want even if my band has used it longer. Who is right about this, and can I get them to stop using the name?

ANSWER:

Without knowing all the details, I think they are wrong. If you have been continuously using the name in public longer than they have, and you can prove it via a flyer or ad, etc., then you would have priority for the use of the name -- provided no other band has been using it or has registered it longer than you.

When I say register, I mean registering a trademark/service mark with the United States Trademark and Patent Office at: http://www.uspto.gov. (Please note that you cannot “copyright” a brand or band name; it is a trademark you are actually referring to.)

Although you can register the name as a business in most states, that doesn’t necessarily give you priority for the use of the name in other states in which you may do business in the form of live shows or merchandise or advertising, etc. The federal trademark is the most comprehensive protection of the name in this internet age, obviously.

Although registry with the USPTO is not actually required to give you priority in the use of the name if you are indeed the first band and the only band to use –– and continuously use –– the name at present, you really need to file your trademark at the USPTO before issuing a legal letter to the other band to cease and desist all use of the name.

You will be able to make the trademark retroactive to your first public use of the name, even if it was many years ago, as long as you have some solid proof of when you first started using the name, and that you have been continuously using the name since that time.

By the way, also do a preliminary search at the USPTO site to make sure no other band has registered and is currently using the name. (If it is another business other than a band or musical group using the name, then there most likely will not be a problem, unless it is a huge, well-known business that thinks you are riding on the coattails of its name recognition, etc., and/or if it thinks that your music or band image tarnishes its own brand by name association.)

You will also want to do a comprehensive internet search as well to any additional in-depth searches.

Email your entertainment business questions and comments to Shelly at: shellyharrislaw@aol.com

[Note: Names are always changed in these Q & A’s. 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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