Early stages of forming a new band...

[Santiago]

My brother-in-law, who was an accomplished guitarist years ago, is practicing again, and after a few jams we're talking about forming a new acoustic group -- inspired by my two teenage sons who are each forming rock bands (though they'd be better forming just one).

My question is simple. I have a great name picked out. How do I register the trademark or copyright, and what will it cost me? I googled the name and didn't find anyone else using it -- as far as I know, at least. I'll share the name when and if I have some music to share too.

I'm not looking for a definitive legal answer on the Web, just how others may have successfully gone about registering a name. Thanks in advance.

[MikeEdgerton]

I know how it works in NJ but in New York it looks like you're opening a real can of worms trying to register a trade name.

http://www.nyc.gov/html/dof/html/business/business_tax_registration.shtml

If it was me I'd just register the domain name and put up a website.

[catmandu2]

Just hope it isn't "Leftover Lutefisk"--just named my new working band this last week.

[Phillip Tigue]

Lutefisk....yum.:crying:

[allenhopkins]

You can go to your county clerk's office in NY (at least you can here in Rochester), and get a "DBA," short for "doing business as..." In other words, Santiago the Mandolinist doing business as Stark Naked and the Car Thieves, or whatever. That gets posted in a local newspaper of record, and is intended to keep others from representing themselves as Stark Naked etc.

Registering a trademark is a much more complex process, involving a search to see whether there ever was another Stark Naked and the Car Thieves, or another registered trademark that impinges somehow on it. For that, a lawyer would be recommended. The advantage, though, is that you can register it nationally. I'd expect that a DBA wouldn't cross state lines, so there could be another Stark Naked etc. in Peoria and you'd have no recourse.

[Santiago]

Right, I have a DBA for consulting. I've heard that it's best to create a logo and copyright that.

[Tim2723]

I suppose it depends on what it is you're trying to protect. Do you expect excessive liabilities? My partner and I have one of the most un-inventive, frequently used group names I've heard (there are at least a dozen Kindred Spirit(s) out there), but we've never had any problems legally.

[first string]

I don't know how it works in music, but in film, it is almost impossible to trademark a title/name. The plaintive would have to prove that you were actually trying to represent your movie as theirs. I had a professor once who had been a producer for a short film that shared a title with a Disney movie (one of the ones based on a centuries old story). Disney sued, and lost.

As I said, I don't know how it works in music, but my guess is that you are wasting your time. Are you really going to want to take the time and expense to defend your trademark? Unless you are the next Rolling Stones, I don't think their are any practical implications. And if you are the next Rolling Stones, I am sure there is some kind of prior use clause that would allow you to preserve your unique name. But the truth is, no matter how original your band's name is, there are probably some guys in a garage somewhere on the other side of the country who are already using it.

[Santiago]

I guess that's why some are telling me to create a logo for the band and copyright the name's look instead of trademarking the words,

[Keith Wallen]

Hey we already have the "Bluegrass Holes" locked in... :-)

[allenhopkins]

By the way, there was a band named "Stark Naked and the Car Thieves": link. (http://www.stark-naked.com/)

[EdSherry]

You can't copyright a band name. You CAN copyright a distinctive logo.

Basically, there are two sorts of trademarks (technically, a band involves a "service mark", since what you are doing is providing a service of making music, rather than selling a physical product): those created under state law (a holdover of the old common law) by doing business using a "mark" (e.g., band name) in commerce, and those created under federal trademark law (the Lanham Act) by registering the mark.

Common law trademark does not give nationwide protection. Instead, they only give protection in the geographic region in which the trademark holder does business, and only in the line of business (or closely related lines of business) that the trademark holder is operating in. That's why there are lots of "Main Street Cafes" in different towns across the country.

A trademark has to continue to be used in commerce, or it will lapse.

For info on federal trademark registration, check the following FAQ info from the US Patent and Trademark Office (PTO):

http://www.uspto.gov/web/offices/tac/tmfaq.htm

The OP indicated that he had searched the web to see if others had used the band name. You can search the PTO list of registered trademarks here:

http://tess2.uspto.gov/bin/gate.exe?f=tess&state=gobafu.1.1


Most bands I know don't bother filing a federal registration. It doesn't provide you significantly more protection than common law trademark does, and it's costly; check the PTO fee structure here:


http://www.uspto.gov/web/offices/ac/qs/ope/fee2009january01_2009jan12.htm#tm


Allen's suggestion about a DBA makes sense. But be aware that "DBA" is not the same thing as trademark (or copyright, for that matter).

Hope this helps.

[steve V. johnson]

In the several decades I've been in band-type businesses the only time any of this became an
issue was when the name/logo/brand/identity of a band or musician represented at least several
hundred thousand dollars of value, based on double that amount of annual revenues.

When images/logos/brand identities come into conflict and there isn't that much money involved
no one can get any advantage by going to court (and thereby investing deeply in attorneys while
getting nothing really done) and so the whole thing devolves into an argument that's best sorted
out among individuals to mutual benefit. Which... really... doesn't require any filings for civil
protection...

So... I've known folks who did everything they could to protect their branding and never had it challenged, which left them wondering if it was necessary. Most of the artists/bands I know who did it didn't come to do the ($) amount of business that exposed them to branding challenges.

I've used D/B/As and they do fine, tho they're limited in scope.

stv