 | FROM THE DESK OF... SHELLY HARRIS |  | |
| |||
by: Shelly Harris / Entertainment Attorney QUESTION:
Here’s my dilemma: My friend and I started a band about a year ago and the name we are using is very close to an established band’s name. Here’s the difference: let’s say the “real” band’s name is “The Frogs” and our name is “Frog.” In other words, theirs has “The” and is plural. Ours is the just the singular of the word. Can we keep our name? Are we in any danger of a legal suit? We have a bank account under our name, does that matter? What should we do? We want to do the right thing.
ANSWER:
This is not an uncommon question, but it is a very important one. I don't know the exact real name(s) you are referring to, and that could matter; however, in general, it IS possible that you could be sued by the “established” band depending on certain circumstances. The most important initial question is which band was actually using the name in public first. A record of any dated advertisement for the band, or even a dated flyer to promote a gig, could establish one band's priority in use of a similar name. Please note that being the first to have a bank account using the name, or the first to have a website with the name, or even being the first to officially trademark/service mark the name will not ultimately give your band the priority over it's use, nor necessarily prevent any potential legal action against you. (However, the USTPO will not trademark/servicemark a name too similar to one already registered and in use.) If the other band can prove they were using the name first in public, they can go back retroactively and have the name servicemarked/trademarked, and then they could potentially bring suit against you. However, the standard and reasonable first step they might take is to write a letter to you requesting that you cease using the name in public and/or in conjunction with any products or merchandise, including CDs. (That can still be a might big Ouch! if you already have many items pressed or printed using the name, and if you have otherwise invested money in promoting yourself under that particular name!) The next question is how similar or dissimilar the names actually are. If they are similar to the extent that an average person may be confused, then the second band could be enjoined (forced to stop using the name) or otherwise sued by the band first in time to use it. It is also important to note that it does not matter if the kinds of music you play are extremely different; as long as you are in the business of recording or performing music, there could be a problem. For instance, if a local record store agrees to carry your CD(s), The Frogs’ CD will usually be placed right next to the CDs by your band, Frog, and it is highly possible that a consumer will mistakenly buy one of the band’s CDs when they meant to buy a CD made by the other. Similarly, if a club advertises an appearance by one band, it’s not a stretch to expect that a few of the other band’s fans, or potential fans, might show up at the gig because of name confusion. In addition, the first, more established band, may have already invested considerable time and money in promoting the similar name, only to have the second band “ride the coattails” or profit in some way from the name recognition. In light of the above types of scenarios, having a singular or plural version of the same name will probably not make the names dissimilar enough for the second band to avoid any and all problems –– including potential legal ones –– going forward. Consequently, if you are indeed the second band in time to use the name in public, I would recommend you change your name more significantly or completely, as soon as possible. | |||
Web Design By: All Rights Reserved © Hungry Mind Design2003 | |||
