How to Register Your Musical Group or Band Name as a Trademark
If you are a musician, band member, or musical content creator, you know that your stage or performance stage name is just as important as your songs or music. Your band name or stage name under which you perform is your professional identity and the way in which you stand out from other performers and establish your valuable reputation and following.
After you have poured your heart, sweat and tears into your music, it would be foolish not to undertake the same effort and dedication to building and protecting your band or stage name. Trademarking your musical group's name gives you exclusive rights to its use, ensuring no one can cash in on your hard-earned reputation.
While the trademark process is highly technical and can be confusing, we will attempt to give you an introduction to the process and what you absolutely need to know in order to register and protect your band name or stage name.
Start by Checking Whether your Band Name is Available and Hasn't Already Been Registered
No matter how you came up with your band or stage name, and no matter how "unique" you believe it to be, there is always the risk that someone else has already registered something the same or similar. Indeed, to pose a problem, a registered trademark need not be identical to your name. The USPTO looks at similar marks, including phonetic equivalents that may be spelled differently.
If you want to maximize the chances of a successful trademark application (as well as avoid the risk of another band being confused for your own), a clearance opinion and search before filing are essential. Once you file your application, the USPTO will not refund the filing fees, even if there is a conflict found later in the process. Thus, the timing on the search and clearance opinion is essential to be done prior to filing the application. Doing this ensures you're not infringing on someone else's trademark and reduces the risk of an application rejection.
Types of Searches
At the very least, you want to perform a "Knock Out" search of existing US Federal registrations. Prior registrations or prior filed applications at the USPTO will be raised during the examination phase of the process. There is a search utility on the USPTO website, where you can search on your own. Likewise, various vendors provide searches. You are encouraged to have an experienced trademark attorney help with this. All too often, non-lawyers mistakenly conclude that no conflicts exist, only to find out that they were not taking into account the proper search methodology.
Now - the "Knock Out" will only look at Federal registrations and applications. However, that is not enough to ensure that there is not a pre-existing use that can cause a problem for you.
Even if your preferred name isn't in the USPTO database, someone may still have rights through common-law trademarks. Anytime someone uses an unregistered trademark, they acquire limited "common law" rights that date from that first usage, and their continued usage in a given geographic area.
Again - third party vendors will provide a comprehensive search report that will cover both state trademarks and common law unregistered usage. Keep in mind that an experienced trademark attorney is also a good investment to make the most of such a search.
For more information on the difference between a "Knock Out" search and a "Comprehensive" or "Full" search, check out our recent blog article on this topic. https://www.iveticlaw.com/what-is-the-difference-between-a-knock-out-search-and-a-full-or-comprehensive-search-for-my-trademark
Choose Classes of Trademark Protection
Next, you will need to consider what exactly you are seeking to protect with the trademark. At the USPTO you have to define what goods/services you are going to be using the trademark for. The USPTO charges a fee per class, and provides an ID manual to help you determine what classes fit for your intended or existing use of the trademark.
For instance, will you be seeking to protect the use of the band name or stage name for live performances? How about for merchandise? Don't forget to seek protection for recordings! These are 3 distinct classes.
- Class 41: Covers live music performances and entertainment services.
- Class 25: Covers clothing and merchandise like T-shirts and hoodies.
- Class 9: Covers recorded music, including CDs, vinyl, and digital files.
This step ensures your ownership rights extend to different aspects of your brand.
Pay Attention to Ensure the Application is Filled out and Filed Correctly
You can fill out the forms to file your application online at the USPTO. The current system (TEAS) will be retired later this month (January 18, 2025). Thereafter, the Trademark Center will be the place where you can accomplish the filing of your application. Of course, you also can hire an experienced trademark attorney, and have that attorney file the application via their verified USPTO account. That approach ensures that the application is filed accurately and maximizes the chances of success. (self-filed applications failed more than 50% of the time).
Remember that you will be charged filing fees by the USPTO that are based on the number of classes that you seek to protect. (These filing fees are likewise going up after January 18, 2025)
Surviving Examination by a USPTO Attorney
After you file your application, it will take about 7-8 months of waiting for the application to finally get assigned to an Examiner for examination. That is the phase of the process where a USPTO attorney will review the file and determine if there are any conflicts with existing trademark registrations or pre-filed applications. Either can be the basis for a preliminary refusal.
Also important to note, the Examiner will determine if there are any other defects that they believe prevent you from attaining trademark registration.
The Examiner will issue an Office Action (also called a non-final refusal) setting forth any problems that they have determined apply to your application. At that time, you have 3 months to address the faults found in the Office Action. If you fail to do so, your application will be considered abandoned and the process will end (without you having obtained registration/protection).
If you get an Office Action, it is a very good idea to seek out the representation of an experienced trademark attorney to help you respond and to represent you before the USPTO. Luckily, many trademark practitioner attorneys provide such services on a flat-fee basis (as does our firm).
Getting your Application Published for Opposition
If you survive the examination phase (either on the first attempt, or after successfully overcoming an Office Action), the application will next be published for opposition in the Official Gazette. At this point of the process, that means anyone in the world who believes that your Application should be denied can file an opposition (within 30 days of the date of publication).
If any third party files an opposition, then you have a limited time period to enter into a legal proceeding before the Trademark Trial and Appeal Board (TTAB) to defend against the opposition. Oppositions have strict time limits and require legal arguments. Thus - it is essential to seek our representation by an attorney if that happens.
Attaining a Trademark Registration
Assuming your application survives the publication phase without an opposition (or you overcome an opposition at the TTAB), the next step involves either a Notice of Allowance (for intent to use) or a Registration Certificate (for applications based on existing use). Either way, congratulations are in order!
If you get a Notice of Allowance, you will have to file proof of use within 6 months (or seek an extension of time to do so).
Once your application matures to a registration - the USPTO will issue a certificate. That will mean that your trademark is registered and protected!
However - there are important requirements to keep your registration. Namely, you will need to again prove use (and pay a fee) between the 5th and 6th anniversary of your registration, between the 9th and 10th year, and every 10 years thereafter.
Again - the representation of an experienced trademark attorney can help make sure that you keep up with these formalities and requirements.
Take Your Band Name to the Next Level
Trademarking your band's name is more than just a legal precaution—it's an investment in your brand, reputation, and creative legacy. By protecting your name, you ensure consistency for fans and peace of mind for yourself as your music career (as well as your popularity) grows.
Still unsure where to start? Trademark applications can be daunting, but you don't have to do it alone. Consult with a trademark attorney or online services designed to simplify the process. Protect your band's future, so you can remain focused on what truly matters—making music.
Our firm, though located in Chicago, actually assists many trademark clients across the US. In addition to the US, we have assisted trademark clients in 6 other countries. Thus, we have the experience and knowledge to help maximize the likelihood of a successful trademark registration for your music group or band. So - feel free to reach out for a free initial consultation!
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