Similar to songs titles, there seems to be an infinite number of band names to pick from. However, unlike song titles, band names can be protected. Trademark protection is a tricky but hot topic these days. With the numerous licensing opportunities presented to successful bands and musicians the protection of a band or artist’s performance name is extremely important.
Bob Marley is a perfect example. Marley has become more than just a musician’s name. People who know Marley’s music immediately associate it with Reggae, Jamaica and a certain “laid back” lifestyle. Over several decades, the Marley name has been exploited by thousands of people for millions of dollars. A protectable name has gone unprotected.
Bob Marley’s estate recently reached a global licensing deal with Hilco Consumer Capital, a major private equity fund that licenses well known brand names to equally well known merchants. The Marley family had grown tired of the millions of dollars it lost out on thanks to sales by unlicensed dealers across the globe. Think of all the Marley paraphernalia that can be bought on the street or in your local head shop. Not to mention the schwag manufactured in China and India that finds its way into the US and European markets.
After years of sitting by and allowing trademark infringers to profit off of the Marley brand, the Marley’s took appropriate action. Hilco with hits large corporate infrastructure and influence will be able to secure specific approved relationships with merchants. Any sales that are occurring outside a relationship developed by Hilco will be an obvious infringer and can be dealt with accordingly. Bootleggers will be less likely to sell their unlicensed goods to retailers. That is not to say that you will no longer be able to pick up a Jamaican Flag with Marley’s face on it at Panama City beach during Spring Break ’09. However, you will not be able to walk into Spencer’s Gifts at your local mall and pick up a “Bob Marley, Legend” t-shirt or hemp necklace. The family through its new corporate partnership have taken the necessary steps to register all things related to Bob Marley and his musical goods and services. Those trademarks can now be policed and enforced if need be through the court system or the mere threat of a law suit.
Most likely, you and your band are not fielding offers from Hilco or other major license distribution companies. Chances are you are not worried about having your band’s name emblazoned on backpacks or hoodies at the mall without your permission. Yet, get a little bit of buzz going and unlicensed merch will start popping up online and even at your shows. Bootleggers love to capitalize on new bands because most do not know how to protect their rights. That’s why you should be prepared.
Registering your band’s name as a trademark will give you statutory protection. Statutory protection will allow you to enforce the rights you have through your unique band name or logo (assuming its unique). By registering your band’s name as a trademark, you can take the steps necessary to stop infringers from using the name or logo, recover monetary damages from those who infringe those rights and even, in specific cases, get the attorney’s fees that you spent to enforce your rights back from the infringer.
Sounds great, right? It is, but like most things with the government, the trademark process is not exactly easy. You have to do your research first. You can’t just pick a name that you think is rad without determining if someone else beat you to the punch. You also cannot profit off of another band’s name and notoriety. While Jon Bovi may think they are the “opposite of Bon Jovi”, chances are, Bon Jovi doesn’t think so. If there is a likelihood that the public will be confused as to the source of where the music is coming from, the government is not going to approve your application. Our friends from SNL may think that they have nothing to do with the actual band, but there is no way they could ever make it with a name that is so similar to the original.
Find out if there are any other bands using the name you want for your band; see if that band registered its name with the United States Patent and Trademark Office. Do a MySpace and Google search. Go to www.allmusic.comand look up your chosen name. While there are a lot of variables to determine if a band name is trademarked or protectable, if you find a band name that is still being used by a band today or was registered in the past, its time to go back to the drawing board for your own band name. Do not start a marketing campaign, release an album or start multi-state tour with a band name until you are sure you are the only ones out there using it. As with most things involving the law, its always a good idea to talk to a lawyer to help you out with the process.
There is something that our benevolent government enacted entitled the American Jobs Creation Act of 2004 (see: http://www.irs.gov/pub/irs-regs/11540305.pdf for text of the important section of the AJCA). Section 181 of the act is all that a musician, a film maker, a video producer or a really rich person with too much in the way of “passive income” should worry about.