C3 Patent and Intellectual Property Law

Feb182010 | Steve O'Donnell

Avoiding Trademark issues when naming your band

Most people don’t realize that all of the issues one can run into when choosing a brand name for a product also come up in the context of band names. In fact, these problems can cause an even greater headache for bands than for other businesses.

David: So we became The Originals.
Nigel: Right.
David: And we had to change our name actually....
Nigel: Well there was, there was another group in the east end called The Originals and we had to rename ourselves.
David: The New Originals.

Bands often change their names to differentiate themselves from other bands. Black Sabbath was Earth before they found another band named Earth was on the same bill as them. The trouble finding a great band name is the same as the problem with finding a great domain name, or a great product name. . . all the best ones seem to be taken. The problem might even be worse for bands because of the nature of a business where bands form and break up all the time, musicians are often in more than one band at any given time, and bands often perform under a different name for different audiences. In other words, the music business rips through band names at an insane rate.

The most common solution to a trademark issue involving a band is that whoever had it first gets to keep it and the second user has to change their name. Specific facts can change that general observation, or at least open up other possibilities, but usually the first to use it has greater rights to the name. Certainly, if your band is gaining steam, the last thing you want to do is change your name because a skiffle band half-way across the country started using the same name a week before you did.

It’s difficult for me to say when a band should trademark its name. Ideally, it’s done as early as possible, but for many bands that just doesn’t make sense. It takes a while to get a stable lineup and have some reliable income before a band really starts to think of themselves as a business and realize that they need to form a legal entity or at least have an operating agreement between members, decide how to handle copyrights, trademark their name, etc. Most bands never get to the point where any of this matters, the trick is knowing when to start thinking about these issues, and hopefully that point is before there is a problem.

If you’re looking for a name for your band I do have a couple suggestions: 1) make up a word, chances are that if you make up a word that you won’t find that someone else is already using it; 2) use a two or three word name; 3) search Google to see if someone is using the name; 4) search a band name registry like bandname.com, and bandnameprotection.com; and 5) have a trademark attorney search for similar names. Admittedly, few bands are going to take my advice of speaking with a trademark attorney, at least early in the game, but doing so is the best way of finding out about possible issues before they become a real problem.