Re: Band Name

On Thu, 4 Feb 1999, Dan Holman <dan8kelli[_at_]aol.com> wrote:
>
> Hello my name is Dan Holman. I am in a band called Hear No Evil. Our
> Logo is very unique and is actually 1 word... Hearnoevil. We recently
> found out of a band called Hear No Evil that has the name registered. I
> can not seem to find how this affects us. We have established a name in
> our area and would be hurt if the name had to change. Also our name in
> the logo in Hear... the 'a' is a triangle. I would appreciate any
> advice you could give me. Thank you.

this is my understanding of band name issues concerning service marks:

i'm assuming that the other band with the same name is not in the same town as yours.

by simply using your name for purposes of performances, promo materials or on cd's, your name is protected by common law in the geographic area where you normally do business. these rights are limited, however. your band has the exclusive right to your name in your town (town1). the other band has the exclusive right to the same name in their town (town2). the problem arises when your band and the other band with the same name both want to play in town3.

when you say the other band 'has the name registered', do you mean with the PTO? if so -- assuming now that your two bands are the only ones with that name -- they have the exclusive right to that name in all 'unclaimed territories' (i.e. in town2, town3, and all other towns except town1... because you've already 'claimed' the territory of town1).

the PTO will only register a trademark (in the case of a band name, it is actually a service mark (SM)) if the name is actually in use and if it has been used in 'interstate commerce' (i.e. in business conducted in more than one state, such as playing a gig in a state other than your own).

even if the other band does have the name registered with the PTO, it doesn't mean that you've lost the right to the name in your town. let's say the other band signs a major label deal and becomes a nationally known act. they can't engage in any form of commerce in your town using that name because you've got the rights to it. if your town in LA or NY, this means big trouble for the other band. if your town has a population of 200 and it's largest radio station signal can be transmitted less than one mile, they might not have too much to worry about. if you are in a big city, the other band (or the band's label) will try and negotiate a deal with you to buy you out... your name in town1 that is. if its your band that signs the major label deal (good luck to you), and the other band's got the rights to the name in every town but town1, you're gonna have trouble and will probably have to change the name... unless your label wants to buy the rights to the name from the other band.

(i'm not a lawyer and this is certainly not legal advice, nor is it necessarily the views or opinions of my employer.)

Derric Oliver
<doliver[_at_]jazz.fantasyjazz.com> Received on Fri Feb 05 1999 - 16:27:50 GMT