How to Trademark a Band Name
How to Trademark a Band Name is part of our How to Trademark series.
The United States Constitution provides for the exclusive right of all American citizens to profit from their creative achievements which includes musical creations. U.S. trademark law provides protection for your band’s name, which is essential to musical marketing. The primary means of protecting your band’s name, which may be a word, symbol, sign, or phrase that uniquely identifies your music, is by registering your band name with the United States Patent and Trademark Office (“USPTO”) in accordance with the Lanham Act.
Three major eligibility requirements apply before you can legally register a band name. First, you must be using the band name commercially, or you must have an intent to use it, to distinguish your music from other bands. There must be some commercial aspect to your band, which can mean anything from selling music on iTunes to performing at your local bar. Second, the band’s name must be distinctive enough to qualify for trademark protection. Lastly, it cannot create a likelihood of confusion with a prior trademark.
Types of Intellectual Property for Musicians
United States law protects three major types of intellectual property – Trademarks, Patents, and Copyrights. For musicians, copyrights and trademarks are likely the most important. The USPTO provides an overview of these differences via their Musicians and Artists Profile.
A trademark designates and distinguishes the source of the goods or services. Some of the most recognizable (and valuable) trademarked band names in the United States include:
- The Beatles®
- Aerosmith®
- The Doors®
- Pink Floyd®
- Queen®
- Red Hot Chili Peppers®
- Radiohead®
- The Rolling Stones®
Trademarks v. Copyrights
Copyrights protect original works of art once they are transferred to a tangible medium. This typically includes your songs and album artwork. Generally, copyrights include:
- Sound Recordings
- Musical compositions
- Artwork
- Liner notes
Copyrights expire after a certain term of years. Further, others may have the right to utilize small portions of copyrighted works in certain circumstances.
In addition to the band’s name, band logos can also be protected. Examples include Aerosmith’s winged logo and Queen’s coat of arms. These works of art can be registered as both copyrights and trademarks. Each form of registration provides different protection under federal law, but trademark law protects against anyone creating a likelihood of confusion. Unlike copyrights, trademarks also don’t expire.
Common Law Trademarks
Even without a trademark registration, common law trademark rights will arise when use first begins. However, common law protections are limited to the specific area of continued use, and you are not afforded the level of protection granted to a registered trademark holder under United States law.
How to Apply to Trademark a Band Name
Conducting a Trademark Search
In order to register a band name as a trademark, the band name must be sufficiently distinctive from other band names. So the first step in seeking trademark rights is to do a trademark search for related trademarks through the USPTO database. While you can search for words and phrases, not all trademarks are words. Every logo is coded for search purposes. A category number is assigned to each aspect of a logo. We do a trademark search for $400.
Filing the Application
If a trademark search shows that your trademark is available, you may proceed to file application. When filing you must provide specific information about the trademark, including:
Trademark Classes
The USPTO recognizes 45 trademark classes. The three most commonly used classes for musicians include:
Types of Trademarks
The more unique your band name, the more protection you will be afforded. There are five levels of trademark strength:
- Fanciful (Coined): A band name invented to function as a trademark without outside meaning. Aerosmith® is considered a fanciful trademark.
- Arbitrary: A band name with a common meaning but not one associated with music. This type of trademark is typical in the music industry. The Beatles® and The Doors® are examples of arbitrary band names.
- Suggestive: Suggestive marks “suggest” something about the nature of your band but does so creatively. Radiohead® is an example of a suggestive trademark.
- Descriptive: Descriptive band names are difficult to protect since describe some aspect of the band. For example, “Smart Girl Band” is a descriptive band name.
- Generic: Generic names cannot be protected since they describe the band. So “Rock Band” could not be protected as a trademark.
Provided that the band name or a similar one is not in use, fanciful, arbitrary and suggestive are all good choices when choosing a band name.
Choosing a Trademark Filing Basis – Actual Use or Intent to Use
You must select a filing basis when filing a trademark application with the USPTO. If you are already using your band name in commerce, you can file on an actual use basis. If you have not yet used the band name but have an intent to do so, you can file on an intent to use basis.
Trademark registration will only be granted if the band name is in use. If your band is currently performing, you should file your application under the “actual use in commerce” category.
If you’re in the process of writing music, rehearsing, and preparing to do live shows, you likely have a good-faith intent to use the trademark and so you should file on an intent to use basis. To prove you have an intent to use, you should document it in writing in some way just in case your intent is challenged later.
How Much Does It Cost to Trademark a Band Name?
Our professional fee to file a trademark application for a band name and do basic follow up until it registers is $950. The government filing fee is $250 per class of goods or services included in the application. So if you file in Class 09 for musical recordings, Class 025 for apparel and Class 41 for entertainment services, your total government filing fees will be $750.
How Long Does It Take to Trademark a Band Name?
The USPTO does not provide definitive processing timelines, but you should expect an examining attorney to review your application about four months after filing. The time for processing varies depending on your filing basis and if the application was filed correctly. For intent to use applications, you will eventually have to file a statement of use showing that you are using the trademark in commerce. The soonest that a trademark registers is usually about 8-10 months after filing.
Contact Us
If you need assistance with a trademark search or trademark application for a band name, please feel free to contact us.
