If there is one hard-fought battle that consistently emerges in the music industry, it’s the one surrounding trademarks. From the pre-emptive strike of preventing a record label from using a pre-existing name, or the post break-up battle over band members associating themselves with past glory, a basic understanding about trademarks goes a long way to saving relationships and legal fees.
Used synonymously with the term “brand,” a trademark is a valuable form of intellectual property distinguished from copyright. Copyright protects the expression of an idea (such as lyrics and melody to a song or visual artwork), and trademarks identify the source of goods or a service. There is sometimes a crossover, as copyright-protected visual artwork (the logo of your favorite band or sports team, for example) or jingles also serve as trademarks.
The standard of the infringement of a trademark is if consumers will be confused by the use of the same mark by competing businesses. If you were to buy a ticket to see a concert, for instance, you want to make sure that the act you think you are seeing is living up to the standards of the brand.
A trademark has to be fanciful, not descriptive. This is why the distinctive names of businesses—including band names—often come after a great deal of thought and research. A unique name can be golden, as you anticipate that significant investment may be made in the business while the trademark becomes more known to consumers.
At the inception of a trademark’s use, legal formalities are not necessary to establish it. However, if you are serious about a name, and you want to seek protection early (or even prior to the use of the name), registering the trademark with the Patent and Trademark Office of the federal government (www.uspto.gov) is a good bet. The government website has tutorials for DIY types. Another option is to retain a lawyer who specializes in obtaining trademarks.
Once established, in order to keep others from using your trademark, it is important to:
• Maintain it by using it.
• Monitor others trying to use your trademark, and warn them that they might be infringing on it.
The more creative you are, and the more you work hard at establishing your trademark through your artistry, the stronger and longer lasting your brand will be.