Trademarking Your Band Name
by Tim Brennan

Finding a good band name that is not currently in use - or similar to one in use - may seem harder to do than writing a great song. So why not protect it from future use by anyone else?

In Toledo, local legend tells a story about a local bouncer/bar employee/musician. Nice guy. Loved using his Pepper Spray during bar fights. Member of the Toledo Republican Party. Punk band singer. For a stage name, he shortened his last name to "Stain" and it became his band name as well. He trademarked "Stain" years ago and found out he made a very profitable investment. "Stain" became the title of Living Color's breakthrough album and he decided on a whim to sue the record company. He received a settlement that was more profitable than any year of gigs in Toledo. Since then, especially with the advent of Grunge, several bands have tried to use "Stain" in their band name. Stain (as we like to call him) happily sued each one who went ahead without his permission, and offered to license the use of Stain to various artists. This became a quite lucrative situation for him over the years. His fortune has probably run out as the band Staind has received some popularity, which will probably keep others from using any form of the name for years. And, oh yes, Staind was originally Stain until they met our friend's lawyer. NOTE: THIS ARTICLE WAS WRITTEN AROUND 2000 OR SO. READ AN UPDATE SOON HERE. STAIND NEVER GOT PERMISSION FROM OUR TOLEDO FRIEND AND A COURT CASE IN IN PROGRESS - OOH REALITY REALITY NOT ON TV, FOLLOW IT SOON.

Other stories tell of the original band Nirvana being paid $90,000 for their name when the Cobain trio released their Nevermind CD. Or the band Mookie Blaylock being kept from using the name by the NBA player of the same name - only to become Peal Jam (better name). I don't know about you, but I'd rather be the band who owns a name rather than one who pays another for it.

So, after you come up with the great name for your project, what do you need to do?

1. Search locations online such as The Ultimate Band List (www.ubl.com) CDNow.com, and MP3.com to see how unique your band name really is.
2. Check the United States Patent and Trademark Office (www.uspto.gov) to review rules of Trademarking and to search their site for bands who have registered under the name you've chosen. Here you will have to become familiar with Trademarking rules because their may be many companies who have trademarked the name you've chosen - or ones similar - but they may be in other industries. Eventually you will want to trademark your name as a live band, as a seller of CDs, cassettes and videos, and as a seller of merchandise. That's three different trademarks. To view the different listings, search for a band like Semisonic and see how they've trademarked their name three different ways (I suggest them because searching for Semisonic will result in few results other than the band). Hopefully, your band name will still be available after all of this.
3. If your band name is not already in use, go ahead and see if you can get the domain name for a future web site. Having a web site does not give you a legal claim to a name, but it is becoming increasingly important to have your own site under your band name - preferably as a dot-com. You can search for available domain names and reserve yours through www.networksolutions.com.
4. So, if your band name has passed all those tests (and the band vote, family and friend opinions, magic 8-ball, etc.), it is time to register it in your state. The forms to do so are fairly simple, but having a lawyer at this time wouldn't hurt. Once you've set up the state Trademark registration, then it it time to get a bank account in the band name. Viola - you are a business. And you thought you were joining a band to avoid business - Hah!
5. Having a state Trademark is not the end. You will want a national trademark to protect yourself from a band in Alaska suing you for your name. The first step in getting this is to prove you've participated in Interstate Commerce. That means play gigs in other states, sell CDs out of state, and/or sell T-shirts out of your home state. Keep the poster that promotes your band name out of state, and copy the check for a CD or merchandise purchase out of state. These can be used as proof of date for "first used in commerce".
6. When you've established interstate commerce, you can return to the US Patent and Trademark Web Site to apply for your US Trademark. Or have your lawyer do it.
7. The process takes about 6 months to receive an answer, so be patient. Not all applications are accepted and some require responses to challenges from other parties. I definitely recommend a lawyer get involved if there are any challenges - because they can speak the legalese.

All this being said, I must disclaim the fact that I am not a lawyer and though I have been trough this process several time, I am no expert. I encourage you, as always to research everything as mucha s possible. And, best of luck!