A band name can be crucial to the overall success and vitality of a band. If you are part of a band or are looking to form a band, you may be wondering whether or not you should trademark your band name, and if so, how to go about doing it.
How to Trademark a Band Name
In general, it is typically a good idea to trademark your band name once you are all settled on the specific name. By getting a trademark for your band name early in your band’s life, you can prevent potential issues that may arise down the road. We will review the steps to take to get a trademark for your band name.
Getting a trademark registration with the United States Patent and Trademark Office (USPTO) can be a somewhat complicated process. This article will walk you through the entire process to make it easier and more understandable for you and your band.
Should I Trademark My Band Name?
Before we get to the question of how to trademark your band name, it is important to explore whether or not it is a good idea to trademark your band name at all.
In general, once you start using a band name in public you will gain certain common law rights to that band name. Common law rights are a type of legal right that is automatically granted by your use of a name in public. Common law typically only protects you against the use of the trademark by others within the specific geographic region it is used.
This means that, for your band name, this probably is not enough legal protection for you to feel protected. If you have plans to take your band on a broader scale, trademark registration with the USPTO can be ideal.
On the other hand, if you and your band only plan on playing local shows and not expanding to a broader market, it may make sense not to seek federal trademark registration with the USPTO.
Federal trademark registration with the USPTO provides increased trademark protection and legal rights. This can be highly beneficial for you and your band in the future should another band try to use the same name as yours.
If it turns into a legal dispute in courts, federal trademark registration provides you with superior legal rights and could allow you to stop the other band from using your band’s name.
Step One: Pick a Name
First up, you need to pick a name for your band. This one may seem obvious, but its importance can’t be understated. You will want to make sure you as a band all agree on the specific name you want to call your band. This can of course be a heated discussion, as multiple members of your band may have differing ideas of what to call the band.
Oftentimes a band name can really make a big impression on people, and can really help or hurt the success of your band.
This is why this can be a very important strategy going forward so that you develop band name recognition as you and your band play shows, put out music, and gain notoriety.
Changing your band name many times over will cause confusion and will lower people’s recognition of your band. Securing a name that accurately and adequately represents your band and its music will be very helpful for the success of your band.
Moreover, making sure everyone agrees on a final band name is also important from a legal perspective. If you change your band name multiple times over, then you will not be able to register your band name for trademark registration with the USPTO, or you will have to keep obtaining different registrations.
All of this will take time and money, which is something that can be avoided altogether if you take the time up front to settle on the band name.
Step Two: Conduct Searches in the USPTO Trademark Database
Federal Trademark Database
Once you and your band have settled on a band name, the next step you will want to take is to conduct searches within the USPTO trademark database. The USPTO has a database called the Trademark Electronic Search System, or TESS.
This database houses both registered trademarks as well as prior pending trademark applications. The database will return trademarks already registered with the USPTO that are:
- Similar to your trademark;
- For similar goods or services (i.e., for a band); and are
- live (i.e., being actively used right now).
If a band name has all of these three things, then you will be prohibited from registering the same band name. This is because there would be a likelihood of confusion between your band name and another band name.
It may take some time to familiarize yourself with the TESS database, so be sure to conduct numerous searches. Play around with the word and phrase variations to see what other potential names have already been registered or are pending.
Searching through the TESS database is important because it will help you understand whether or not the USPTO will be likely to reject your trademark application due to a likelihood of confusion with another, already registered trademark.
Note that to fail the likelihood of confusion test performed by the USPTO when approving trademarks, your band name would have to both:
- Have a same or similar trademark; AND
- Be used in association with the music industry.
A complete trademark search will be one that returns trademarks that are similar to your band name, not just those that are identical. Make sure you have everything spelled correctly. Moreover, try different arrangements of the words to make sure you are pulling up all potentially relevant hits. The USPTO has some helpful tips for searching through their database.
Consult an Attorney
You also will want to check other trademark search databases. For example, many states have their own individual trademark databases.
It can be helpful to consult a trademark attorney about the search databases to use and how to search them. This is because trademark attorneys are very familiar with the TESS database and other databases that will be applicable to your geographic region and industry.
They will be able to find potentially disqualifying trademarks that you may not uncover on your own. Intellectual property attorneys often have a lot of experience within the TESS database and know the different ways to uncover other band names that may meet the likelihood of confusion tests used by the USPTO.
As the trademark office requires you to specify the exact goods and services you will be providing, you’ll need to take a deeper look at what your band will be providing. For example, registering the band name for live performances will require one trademark classification, while registering it for recorded music, albums, etc. would require another, and then clothing, yet another classification. It is important to set the right strategy before you file.
Step Three: Submit Trademark Application
Importance of Timing
Once you have determined the appropriate band name you want, and have confirmed that no one else already has either a pending trademark application or a trademark registration for the same band name, it is time to submit your trademark application for your band name.
The timing of your trademark application is very important. It is a good idea to submit your trademark application with the USPTO as soon as you can. This means that once you have all settled on the final band name, look into submitting your trademark application with the USPTO.
Submitting your trademark application for your band name as soon as possible is important because the date you submit your trademark application determines what is called your “priority date.”
Your priority date will determine your eligibility and priority over others when using that mark. This can be incredibly vital in any future legal disputes about your band name.
It is important to note that this priority date is not determined by the date the USPTO approves your trademark application and provides you with trademark registration. Instead, your priority date is determined by the date your application is submitted.
This means that once you submit your trademark application and it is pending before the USPTO, you can rest assured that you will have priority, even if it takes the USPTO a long time to actually provide you with official trademark registration for your band name.
Prepare and Filing Your Trademark Application
The next step is to prepare your trademark application for the USPTO. You will want to create an account with USPTO.gov on the Trademark Electronic Application System (TEAS), which is where you will be filing your application. Next up, you will want to fill out the trademark application form on TEAS.
There are two different TEAS applications to choose between filing:
- TEAS Plus:
- More requirements up front when you submit your trademark application;
- Allows you to write the description of your goods and services rather than choose from a prewritten list of categorical goods and services;
- Filing fees are $350 per class of goods or services you write out. This means you are able to write separate goods and services classifications if you believe your band name would fall under different types of classifications.
- The TEAS Standard
- Fewer requirements up front when you submit your trademark application;
- Much choose your goods or services from the list set out in the Trademark Identification (ID) Manual.
- Filing fees are $350 per class of goods or services you write out.
Because you are trying to trademark your band name, you probably want to apply for filing under the TEAS Standard position because you probably do not need the ability to write your own written description out. This means it will cost less money to submit your trademark application for your band name.
This is another great time to engage a trademark attorney. Properly drafting your trademark application and filing with the USPTO is very important for the long-term success of your application.
Having a professional who can weigh in on the proper terms to use, the right format, and other details can be crucial to the ultimate success of your trademark application for your band name. Moreover, having a trademark attorney will be helpful through the application process as you interact with the USPTO, explained in more detail below.
Making sure you secure a trademark for your band name is vital to the success of your band. Otherwise, another group can come in and use your name for their band. This can provide very difficult competition for you and may hurt the success of your band.
As part of the application, you will need to decide whether to trademark text, a logo, or some other image. For most band names, it is a good idea to trademark the text of your band name to provide the greatest protection for your band name. Otherwise, you may not have full protection should another band try to use the same name as yours.
Step Four: Establish Your Band Name
Don’t wait until your band name has officially received trademark registration before you start using your band name and playing music. It is important to gain notoriety for your band name as soon as possible to ensure the greatest possible success for your band.
As explained above, the priority date for your band name is the date you file your trademark application, not the date the USPTO officially grants you trademark registration.
One great way to establish your band name is to book as many gigs under your band name as possible and play your music as much as you can. The more you play using your band name, the more your band name will receive recognition in public.
Another important way to establish your band name is to get as much press as possible in connection with your band and its associated name. One great way to do this is to draft a press release about the formation of your new band and explain the type of music you play.
This press release will be enhanced if you have a date and time that your band is playing, or even better a tour to advertise. But, importantly, you will want to cultivate a comprehensive list of media contacts.
It is a good idea to research the specific music editors and other music-related contacts within the different popular press outlets in your specific geographic region.
Another smart public relations move is to associate your band with some type of altruistic, charity setting. This could be playing musical concerts for free for good causes or donating a portion of ticket sales to a good cause.
Overall, it is important to gain as much public recognition of your band name as possible. This will help to increase the popularity of your band and its music. It will also solidify your use of the band name as a trademark and will help solidify your legal claim to the band name.
Step Five: Work with the USPTO Attorney
As part of the process of approving your trademark application, an attorney working for the USPTO will be assigned to your trademark application. This attorney will review your trademark application in detail. This review includes conducting multiple, very thorough searches within their database for potentially similar band names.
As part of this approval process, the USPTO attorney may submit questions to you along the way. You will be given a certain amount of time to respond to these inquiries. You typically will be able to respond to these questions by providing written responses that detail out your answer to the USPTO attorney.
You may also need to submit evidence in support of your responses. This evidence typically can be attached as exhibits to your responses.
In general, it is a good idea to provide the USPTO attorney handling your case with as much information as possible. This is why it is so important to conduct your own searches within the TESS database upfront.
This way, you can begin preparing responses and accumulating evidence in support of your argument as to why your band name can be distinguished from other potentially similar band names.
Check Your Status
Be sure to regularly check the status of your trademark application with the USPTO. You can check this status through the Trademark Status and Document Retrieval (TSDR) website 24 hours a day, seven days a week.
Checking your application is important because according to the USPTO:
Failure to respond timely to any Office action or notice may result in the abandonment of your application, requiring you to pay an additional fee to have your application revived even if you did not receive the office action or notice.
This means it is very important to make sure you are checking the status of your trademark application and timely responding to any questions posed by a USPTO attorney.
If you do not respond timely to a question posed by a USPTO attorney, your application will be deemed abandoned. This will take place if a question goes unanswered after two months.
If the USTPO attorney that is examining your trademark application determines that the band name should not be registered, the attorney will issue a letter to you called an office action. This office action will provide the substantive reasons why the attorney is refusing to register your band name.
This may include any technical or procedural deficiencies involved in your application. Once you have received an office action, you have six months to respond to the letter. After six months have passed with no response, the USPTO considers the trademark application abandoned.
Step Six: Receive Trademark Registration with the USPTO
If the USPTO attorney assigned to your trademark applications does not find and raise any objections to your application, or once any issues have been addressed, the USPTO attorney will then approve the trademark to be published in the Official Gazette. You will be notified about when this publication will take place.
The Official Gazette is a weekly publication put out by the USPTO. By publicizing the trademark, this allows any party that believes it may be damaged by a trademark registration to have 30 days from the date of publication to respond. This party has two options:
- File an opposition to the trademark registration for your band name; or
- Request an extension on time to oppose the trademark registration.
Any opposition carries out like a federal court proceeding but is held in front of the Trademark Trial and Appeal Board (TTAB). The TTAB is the administrative tribunal of the USPTO.
If no opposition to your trademark application is filed, or if opposition was filed but is unsuccessful, then the USPTO will register your trademark. This may take three or four months from the date of publication before you receive official notice that your band name has been approved for trademark registration.
You will receive a certificate of registration of your band name from the USPTO.
Step Seven: Maintain Your Registration
Once you have received trademark registration for your band name, you need to make sure you stay on top of maintaining this registration. You must file maintenance documents with the USPTO in regular intervals. If these documents are not filed in a timely manner, the USPTO will cancel your trademark or it will expire.
Between the fifth and sixth year after your band name has been registered, you will need to file a Declaration of Use and/or Excusable Nonuse under section 8.
Between the ninth and tenth year after your band name has been registered, you will need to file a Declaration of Use and/or Excusable Nonuse and an Application for Renewal under sections 8 and 9.
Following this, every tenth year you will need to file subsequent Declarations of Use and/or Excusable Nonuse and an Application for Renewal under sections 8 and 9.
Do I Need to Copyright My Music?
Another intellectual property question that often arises when you are looking into trademarking your band name is whether or not you need to copyright your music. Your music is integral to your band and to the success of your band.
It is understandable that you want to make sure you secure as expansive of legal rights that you possibly can for the music that you spend so much time and effort to make.
The thing is, music is actually automatically copyrighted under copyright laws once it has been created into a tangible medium. This tangible medium could be something such as writing it down onto a piece of paper or recording the song through some recording medium. Note that there are separate copyrights available to a song’s author for the musical composition and for the actual recordings.
As a musician, it pays to learn how copyrights work. The savviest musicians are those that understand copyrights and know what it takes to actually own the rights to their music.