Basics: A trademark is a word, phrase, or other symbol used in commerce to identify your brand, product, or identity.? In the music industry, a trademark exists for the protection of bands, labels, related businesses, and consumers by giving the creators and/or owners of products or services exclusive rights to use a certain name, word, or image to identify their products or services (and prevent others from using them).? In addition, it protects consumers by ensuring that when they buy a product (for example a concert ticket or piece of merchandise), they know they?re getting the real thing.? Trademarks also help protect bands by ensuring that their brand isn?t tarnished by other groups touting themselves as the original.? Before describing registration, you should note the difference between a ?trademark? and a ?service mark.?? A trademark is used in regards to goods (albums, merchandise), where a service mark is used for services (performances, ticket sales).? While these terms are regularly referred to as one and the same, make sure you know which one applies before you register.
How to Register for a Trademark: Your band may have already acquired trademark protection through common law (which is harder to determine and by no means foolproof); however, formal registration is hands down the way to go.?? The advantage of registration is that (1) it puts other groups on notice that your band?s name is ?taken? and (2) it allows you to sue in federal court if a dispute arises.? There are some qualifications you will need to check off prior to registering.? First, have you participated in ?interstate commerce? (i.e. toured or sold your music in several states)?? Second, do you have proof that your name has been used in commerce?? If you?ve answered ?yes? to both of these questions, you may begin the registration process.
Step One: Make sure your name and any designs are locked down.? First, go to http://tess2.uspto.gov and conduct a search at the online database for similar marks.? Note that your search results may include marks that have expired or are no longer in use.? It?s worthwhile to dig around for a while.? Second, once you have solidified your name (and logo if applicable), make sure you have any related pictures in JPEG format and have it in the property form.
Step Two: Prepare for filing.? We strongly recommend looking through the application process step by step at http://www.uspto.gov/trademarks/teas/new_teas_plus.pdf, which has screen shots of all the questions and information needed throughout the process.? Even with small trademark filings, there is a good amount of information to gather and submit to the organization, which includes: owner of the mark (this could be an individual, partnership, or corporate entity), full contact information, type of mark, date of first use, date of first use in commerce, etc.? Also have a credit card ready for electronic filing, which is currently $325.
Step Three: File away!? Go to http://www.uspto.gov/trademarks/teas and start the process.? If you find a few hiccups along the way, don?t hesitate to look up it up ? there are dozens of sites (including YouTube tutorials) dedicated to each step of the process.? For an affordable rate, you can also have a professional guide you at www.directlegal.com. Finally, if you want the assurance that it?s completed properly, hire an attorney specializing in trademarks.
Once you officially register your band name, you are presumed the lawful owner in the United States. Good luck!
Adam Barnosky is a Boston-based attorney and writer.? For industry trends, legal updates, or to request an upcoming Legal Pad topic, find him on Twitter @adambarnosky.
DISCLAIMER: The information contained in this column is general legal information only and should not be taken as a comprehensive guide to copyright law. Consult your attorney for all specific considerations.
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