Artist Development 10

Trademarks

by John Latimer

Another crucial step in Artist Development is securing a Trademark with the United States Trademark Office. Other than equipment and gear, securing a Trademark is probably the most expensive item that an Artist will have to complete for their Artist Development. The good news: A Trademark is valid for 10 years. Then it must be renewed. As explained in the Artist Development Plan about Image, the name of the Artist is of utmost importance in establishing a brand.

In starting a musical band, choosing a good name may be a difficult task that the Artist must perform at first. And along with a name that will highlight the Artist’s unique identity, consider some of the legal aspects that relate to the name. If the Artist is attempting to make it big in the music industry, by writing songs, making recordings and selling merchandise; it becomes necessary have to trademark of the Artist’s name. This is applicable to both if you are a solo musician or artist, or a lead member of the band.

The United States Patent and Trademark Office may be accessed online at www.USPTO.GOV. This is a great place to start to discover if the desired trademark is available, and then to actually register the mark.

What is a Trademark?

A trademark can be defined as a distinct name, sign or any type of indicator (logo, slogan, word, symbol, design or a combination of all) that is used by an individual, legal entity or business organization, such as an artist, band or record label, to distinguish and identify their goods or services from that of others. In other words, trademarks of the Artist, or the Artist’s products, shows their source of origin and helps the fans and customers in identifying a particular product.

Apart from the identification purposes, as per law, trademark is a type of intellectual property and its exclusive rights can be established through its actual commercial use in the market or by registering it with the trademark office. While, in some regions, commercial use of the trademark is sufficient to establish the rights associated with it, in some other places, registration is necessary.

A trademark is often defined as any name, symbol, or design, or any combination of the three. A trademark can be applicable of any product, business, corporation, enterprise or even subsidiary organization. A trademark is used by companies or business organizations in order to associate their name or logo as a unique brand. The existence of a trademark on any product plays an excellent psychological effect on fans and consumers. The trademark basically helps the fan to identify the Artist’s product. The logic behind the use of trademark is extremely simple. It’s easy for humans to remember graphics and pictures as opposed to plain written language or text. The logos and symbols that are used to make the trademark are thus easy to identify, and get registered into our minds.

Trademarks are brand names, logos, designs, words or phrases that can be used to distinguish the products and services of an Artist and/or an Artist’s company. Trademarks can be federally registered or by commercial use as defined by Common Law. Collective trademarks are used by the members of a group who together provide a particular service.

 Trademark Types

There are 3 types of trademarks that are currently in use in the United States.

  1. Non-Registered Trademark – The first one is the unregistered trademark, represented by letters TM. Violation of this trademark is not legally enforceable.
  2. Service Trademark – is represented by letters ‘SM’, and is commonly used by the service sector brands.
  3. Registered Trademark – The registered trademark is the most commonly used trademark, and is legally enforceable, and is represented by an ‘R’, enclosed in a circle. ® Some call it a circle R.

Non-Registered Trademark

A non-registered trademark is a logo and name that is not registered in accordance with the trademark office. In case of violation of such a trademark, the case that is filed often remains undecided. In a trademark infringement law suit, if the claimant is able to produce a record that proves that he was the first person to use the logo/name/symbol, then the accused usually has to compensate for damages.

Registered Trademark

A registered trademark is recorded in accordance with the trademark office. Violating a registered trademark is an offense and the accused may have to pay heavy fines and compensations.

Trademark Symbols

Generally, two symbols are used to denote a trademark. One is ‘™’, which represents a trademark symbol and the other is ‘®’, which is used to denote an application for registered trademark. These symbols are displayed immediately after the trademark, in a superscript style. If the product carries the symbol ‘™’, then the trademark may have never been registered or may be in the process of registration. If the symbol is ‘®’, then, it denotes a trademark that is registered with the United States Trademark Office.

In the United States, the government authority to issue and validate a Trademark is the U.S. Patent and Trademark Office (USPTO or PTO). The proprietary rights of the trademark can be established with its first date of commercial use or by registration with the trademark office. In cases of infringement, registered trademarks enjoy a higher level of legal protection, as compared to a non-registered one.

Reasons to Apply for Trademark

There are numerous reasons why an Artist needs to trademark and register their name. First of all, a trademark plays a central role in preventing the use of the Artist’s name by another artist or other musical groups. Trademark law states that an artist or band cannot use a name that is similar to another artist or band. There have been many cases where bands have ended up changing their names just because they used a name similar to another group. That’s why it’s important to create a unique name of the Artist or band name in the first place.

It is recommended to come up with a unique name that does not sound or seem similar to another group, and trademark it as soon as possible to preclude other groups from using it. Trademarking a band name also allows you to legally distribute merchandise, sell records, and carry out music industry dealings with the desired logo on it.

Advantages of a Trademark

  1. Proof of Use and Ownership: In case a common law trademark is registered by a person who is not the first user of the mark, he gets the right to use it and the original user of the common law mark loses all rights. Hence it is best if the trademark is registered.
  2. Right to Use it Nationwide: The trademark can accompany goods or services distributed throughout the nation.
  3. Preventing Import of Counterfeit Products: A business can prevent the import of counterfeit products by registering the mark with the U.S. Customs department.
  4. Applying for Trademarks in Foreign Countries: A Federally registered trademark can be used in order to expedite the process of obtaining a trademark from a foreign government. This is necessary in case the products of the Artist are exported, because a trademark only has national validity.
  5. Settling of Disputes: A registered trademark is helpful in settling any disputes in a federal court of law, regarding the use of the trademark by others.
  6. Selling the Business: In case of selling the business, it would be helpful if the owner has registered trademarks. Trademarks result in increasing the worth of a business, by helping to distinguish the products of a particular manufacturer from others.

It is evident that registering a trademark is a necessity rather than a convention. The benefits of registering clearly outweigh the cost involved in registering the mark. Every business, however small, should protect its right to use its mark by registering it.

Every music business professional such as record label executives and publishers will want to know that the Artist that they are signing has a trademark on their name. Can you image a record label signing an artist to the label and then put in lots of time and money to make the product: the recording, the mixing, the mastering and the CDs, then the record company releases the product, and three days later, they get a cease and desist letter from someone who owns that Artist’s name? The record label will demand that the Artist’s name is trademarked before they ink a deal.