Band Names: Trademarks and crap

[delgadoboy]

So the hardest part I found so far of being in a band is finding a band name that is good and isn't taken yet.
We have the music and equipment to start recording/performing but without a name we can't share our videos or perform so my question is this...

How do band names work? If I want to be called for example, "The Apples" and I go on Google and find there's another band named "The Apples" does that mean I can't have that name? Or if that band doesn't have the name trademarked, I can trademark it and pretty much steal it from them?
How does one go about doing that? Because I have some awesome band name ideas but every single one, you can find a Wikipedia article about. (They are usually really really small bands that haven't been a band for 40 years)

[BJG145]

I don't know where you stand legally, but personally, I'd try and find something original and distinctive that's likely to put your domain at the top of a Google search. (Not to mention Facebook, YouTube, iTunes, Spotify, etc.)

[The Red Bladder]

As long as you are a complete and utter failure, it doesn't really matter. If you have any success, then the band to have first used that name and can prove it, can claim to have traded under that mark or marque and force you to stop using it.

[damoore]

Trade marks can be regional (at least in the US), which stops working as soon as one band of the name becomes large enough, and also are usually at most national in scope, so that even if you have a name first in the U.K., you can't force a later band of the same name in the U.S. to change their name.

When you do come up with a name, make sure you all agree who owns it and get it in writing, so that when band members leave, you don't lose the name, and your hard work building a presence, with them.

[delgadoboy]

As long as you are a complete and utter failure, it doesn't really matter. If you have any success, then the band to have first used that name and can prove it, can claim to have traded under that mark or marque and force you to stop using it.

Yeah but so what if they can prove they used it first, if I trademarked it first?

[Emmet]

Get the Ann Harrison book, it covers passing off etc.

http://books.google.co.uk/books?id=lj_1 ... ff&f=false

[The Red Bladder]

As long as you are a complete and utter failure, it doesn't really matter. If you have any success, then the band to have first used that name and can prove it, can claim to have traded under that mark or marque and force you to stop using it.

Yeah but so what if they can prove they used it first, if I trademarked it first?

It doesn't work like this. I suggest that you read up on Trademarks on Wikipedia, as it is a big subject.

But to cut to the chase, the bottom line is that you have to come up with an original name that nobody else is using and is also not the name of a known major brand in another field.

[delgadoboy]

As long as you are a complete and utter failure, it doesn't really matter. If you have any success, then the band to have first used that name and can prove it, can claim to have traded under that mark or marque and force you to stop using it.

Yeah but so what if they can prove they used it first, if I trademarked it first?

It doesn't work like this. I suggest that you read up on Trademarks on Wikipedia, as it is a big subject.

But to cut to the chase, the bottom line is that you have to come up with an original name that nobody else is using and is also not the name of a known major brand in another field.

So even if there is a band on Facebook with the name I want, that was created 5 years ago and only has 2 likes and one crappy recording, I can't trademark it? Even if I have over 100,000 fans and make a living off of my music?

If he trademarked the name, of course I know I can't use it. But does one kid naming a Facebook page prevent anyone from trademarking that name?

[BJG145]

Probably not, though:

David Fenton, a lawyer at the Musicians' Union, says bands should be original.

"As soon as you've chosen a name, you don't want to spend all your life in court trying to protect it.

"You might as well choose a name that nobody has thought of."

This is still good advice. And it's not difficult to be original.

http://www.bbc.co.uk/newsbeat/17704632

(As for your 'stealing' idea, I wouldn't have thought that it would be possible to prevent them keeping their Facebook page or whatever...? But why anyone would want to steal a name is beyond me.)

[delgadoboy]

Probably not, though:

David Fenton, a lawyer at the Musicians' Union, says bands should be original.

"As soon as you've chosen a name, you don't want to spend all your life in court trying to protect it.

"You might as well choose a name that nobody has thought of."

This is still good advice. And it's not difficult to be original.

http://www.bbc.co.uk/newsbeat/17704632

(As for your 'stealing' idea, I wouldn't have thought that it would be possible to prevent them keeping their Facebook page or whatever...? But why anyone would want to steal a name is beyond me.)

I'm not saying I want to steal a name. I'm saying if I come up with a name that I love and go on Facebook to check if its taken, and it is... am I screwed even if the band that has that name is pretty much nobody?

And yeah, of course coming up with an original name is not difficult. But I want a short name like one word. But every single word in the dictionary is already a "band" and by band I mean, has a Facebook page (even if it only has 2 likes)

[Offramper]

OK slight variation but not threadjacking I hope - I have an original band name, Google does not show any hits and I like the name - how do I protect my right to use it?

[zenguitar]

So even if there is a band on Facebook with the name I want, that was created 5 years ago and only has 2 likes and one crappy recording, I can't trademark it? Even if I have over 100,000 fans and make a living off of my music?

First come, first served. Or... "finder's keepers losers weapers"

Any other approach is a gamble, and a poor one at that.

OK slight variation but not threadjacking I hope - I have an original band name, Google does not show any hits and I like the name - how do I protect my right to use it?

By using it, and by using it in a way that is on the record. So create your Facebook (other social network sites are available) page sooner rather than later. Create your track record.

Andy

[Dynamic Mike]

But to cut to the chase, the bottom line is that you have to come up with an original name that nobody else is using and is also not the name of a known major brand in another field.

You mean like the Kaiser Chiefs? Or the Ataris?

With transient bands the other option you have is to ask. It's a long time ago now but my uncle had planned to market a themed range of golf products but discovered 2 of the names had already been used. He bought one trademark for a case of wine & got the other just for asking nicely. It's a story he never tires of telling. A respectful facebook post might be all it needs & it's free to ask.

[trevorscott33]

having read this thread i have just looked up my chosen name (T333) and have found that is is used as a name for such things as a mobile phone, online learning course, racing cars and railway rolling stock. does this matter?

[trevorscott33]

having read this thread i have just looked up my chosen name (T333) and have found that is is used as a name for such things as a mobile phone, online learning course, racing cars and railway rolling stock. does this matter?

my wife has just said this is a stupid question, is it?

[delgadoboy]

having read this thread i have just looked up my chosen name (T333) and have found that is is used as a name for such things as a mobile phone, online learning course, racing cars and railway rolling stock. does this matter?

my wife has just said this is a stupid question, is it?

I think as long as it's not a brand/company name then you're good, correct?
I mean if there's a bunch of unrelated things with that name, like a phone, online course, race car etc... then just add band to that list!

Like U2 named their band after the plane. The plane's company wasn't U2. It was just the name of the plane.

[trevorscott33]

thanks for that, i kinda came to the same conclusion, but it is good to know someone else agrees!

my wife says that next time i should think before posting, what does she know

[Steve A]

I think the issue you need to be careful of here is "passing off". In other words, does using a name give rise to the reasonable chance that someone might confuse you with someone else who legitimately uses that trademark? In the example you mention, even though T333 may be used, and may even be a trademark belonging to someone in respect of a completely separate line of business, it is not, as far as I can see (but beware, I'm only a layman, not a lawyer) especially well known, and it strikes me as reasonably generic (every reasonable combination of letter and numbers has probably been used at some point to name an electronic component!) and so if you were to use it as a band name, then you could argue that no-one is going to confuse you with a mobile phone component manufacturer or whatever. In the same way that no-one assumes U2 the band is anything to do with the type of plane it is named after.

Contrast this to if you were to try and use the name 'Microsoft' for a band. Even though Microsoft have nothing to do with recording or performing music, the brand is so well established, no-one else could ever realitically use it for anything because the name is so well established it would always look to the casual observer as if the company was in some way involved.

A couple of case studies in relation to this that might be of interest would be Apple the computer company v Apple the Beatle's record company (from around the time when itunes was first launched), and also the problems Thomas Dolby had with Dolby the Noise Reduction people when he first started having hits.

[Dynamic Mike]

having read this thread i have just looked up my chosen name (T333) and have found that is is used as a name for such things as a mobile phone, online learning course, racing cars and railway rolling stock. does this matter?

If it's already being used for all these things, presuming they're not all actively suing each other, I think perhaps you've answered your own question.

[trevorscott33]

thanks guys, great answers.
i'm going with the name as i have had a good look and can't find any music/band references on line, plus i now realise i've been using the name on soundcloud for over a year with no come back.
thanks again

[djangodeadman]

My understanding is that, under UK law, you cannot copyright a name. What you cannot do is pass yourself off as somebody else. The situation is complicated by the fact that American copyright law is somewhat different. This is why, for example, The Beat had to call themselves The English Beat in the States. They still called themselves The Beat everywhere else though. A trademark is not the same as a name. You could call your band McDonalds if you wanted (at least in the UK you could). What you couldn't do is use the Golden Arches. That is McDonalds' trademark and is protected under UK law. You might also have a problem if, rather than a band, you wanted to name your chain of burger "restaurants" McDonalds. That would look like you were pretending to be them, which is passing off.

I'm not suggesting McDonalds as a name for your band, obviously. That would be a terrible idea.

[MarkOne]

I'm not suggesting McDonalds as a name for your band, obviously. That would be a terrible idea.

Well unless, I guess you're name was McDonald and you had a brother and you were a singing duo… I'll get my coat.

[damoore]

As well as passing off, there is the concept of "dilution of brand". For example, in England, many people talk of "hoovering" a floor and write with a "biro". Both of those were trademarks but they became common words and hence are of no (or at least less) use as trademarks - you don't necessarily hoover with a Hoover or use a Biro for a biro.

If the owner of a trademark fails to defend it, they can lose it, so for larger companies they have to sue to show they are defending their trademark. So Macdonalds would probably feel compelled to sue a band called, say, "The Big Scots Macs" even though they'd be thinking large men in kilts just as much as the rest of us. They might not expect to win but they have to go through the motions.

[djangodeadman]

I'm not suggesting McDonalds as a name for your band, obviously. That would be a terrible idea.

Well unless, I guess you're name was McDonald and you had a brother and you were a singing duo… I'll get my coat.

Clearly, in that instance it would be an excellent name!