When Two Bands Have Exactly the Same Name

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It’s one of those situations that you hope never happens to you.

But let’s face it: with millions of bands online, there’s actually a decent chance another active group has exactly the same name as you. And the likelihood increases if you are managing or working with several artists.

So what to do?  Before this conflict occurs, proper trademarking and registration can go a long way.  And, the band that understands these processes best has a better chance of keeping their identity – or choosing a better one from the start.  The following is another exclusive excerpt from the upcoming book, The Future of the Music Business (3rd Edition) by Steve Gordon, slated for publication in April.  Hal Leonard is the publisher.

How do I protect the name of my band or my label? Should I register the name and how much will it cost?

This interview answers the questions above and goes well beyond to present the best trademark law primer for musicians, bands and labels that I have seen. I want to express my thanks to James Trigg and Ashford Tucker of Kilpatrick Townsend & Stockton LLP, a full-service law firm with a specialization in copyright and trademark law. They spent a great deal of time and attention to address each of my questions which will be clearly evident once you read this section.  James is a partner whose practice focuses on copyright and trademark issues arising in the context of the Internet.  Additionally, he has advised a variety of entertainers and creators on domestic and international trademark and branding issues, and he is an adjunct professor of Trademark Law at the University of Georgia School of Law.  Ashford is an associate who provides domestic and international trademark portfolio counseling to clients in a variety of industries, including music. Ashford also used to write for Pitchfork, the online music publication.

SG: Can you run down the basics: what is a trademark, and why is it important artists and bands?

JT and AT: A trademark serves to identify the source of goods or services.  When we see marks like Coca-Cola, Microsoft, Budweiser and BMW, we instantly associate them with the products sold in conjunction with them, and we rely on these names to assist us in distinguishing one product or service from another.  Thus, generally, trademark law seeks to prevent consumer confusion by allowing trademark owners to control the use of their marks so that consumers can rely on a trademark as an indication of a product or service’s unique characteristics.

The law of trademarks applies to the fields of music, film, literature and art just as readily as it does to soda, software, beer and cars.  Of course, most of us do not like to think of the arts as a “commodity,” something that merely is bought and sold.  Similarly, artists themselves at times may be reluctant to view their names or their creations as commercial trademarks that identify them to the public in exactly the same way that Budweiser identifies Anheuser-Busch.  Nonetheless, by taking steps to protect their names, entertainers and artists can assume greater control of their identities and the way that those identities are perceived by the public.