Band Name, Logo, Artwork, Music - Copyright, Service mark, Trade mark, Website

[Padonak]

This is gonna be a long post.

Our band is at the point, where we need to start protecting our authorship.

We have an original name(no other band names even with 10 plays on myspace), logo that we drew, artwork that we drew too, and of course songs that we wrote.

As for artwork, I know we can copyright the image as a piece of art. Artwork for the EP includes a mascot that we will continue to use later, should we copyright mascot separately? Does copyright cover partial use of artwork, to avoid use of our mascot by someone else without a permission ?


Logo and name:
We are confused as **ck on this one. It is registered with bandregistry.com (it's more like a joke, but when we came up with it we just wanted to get it out there in as many ways as possible.)
We want to use it on all kinds of merch, and we don't want anybody to take our name in some other state before we play a show there. (it had happened to a few bands... they could not sell their CDs in California just because there was a band that started using their name earlier, but never made it out of the state)
So we can either trade mark it or service mark it. The main purpose of the band is to play shows, which falls under the service mark category. Than again we don't want our name or logo to be used to promote "diapers" without our permission. Should we do both, or one of them, which one? We can prove that we sold merch to someone(which is one of the requirements for trademark)We can also register logo as an artwork, which would not protect our band name, and as i understand not the right path to take.

Songs:
Well... it is easy on this one and I think we got it figured out. Just pay $35 fill the forms and upload files(music and lyrics). Fairly easy online process

Website:
This is a tricky one....
www.OURBANDNAME.com is taken, is inactive but not for sale...
Traffic estimates to that website say it is not being visited at all.
Content on that website is bogus and links don't work. How should we approach the owner of the domain? We've been told by one guy that after we trademark our name we can threaten to sue them, but just threaten.... (that guy is not a lawyer) and hope that they will get scared and drop the name. I understand that if we offer to buy it, someone will decide to make a fortune... Is there anyway to reassign the domain based on the facts that our name is trade/service marked and site not being visited or used in any other way?

[surflounge]

list some original names you want
check for trademark description categories and .com availability
Trademarks Home

maybe change your name and logo design until you have something original worth the effort of securing an offshore bank account too

[Padonak]

Read carefully, please.
We do have an original name.
Its just the website name is registered to like a holder.... they dont use it.
Search come up with 0 results for trademark.
None of the questions answered yet...
Trade vs Service mark etc..

[JoaT]

There's other domains besides .com

Try .info, .net or your country domain suffix.

Don't bother with the .com, seriously. If it's reserved but inactive, chances are someone reserved it to make money reselling it. And if you can get a hold of him, there will be a price to pay.

The best way to get your band name stick to you is to make names out of yourselves. Trademark registering can easily be seen as a bit "corporate" behavior coming from a band.

As for the logo or other graphics for your image, the same applies.

But then, if you feel you must, you must.

[jimcroisdale]

Originally Posted by Padonak

Read carefully, please.
We do have an original name.
Its just the website name is registered to like a holder.... they dont use it.
Search come up with 0 results for trademark.
None of the questions answered yet...
Trade vs Service mark etc..

With that tone, what do you expect?

There are some super people in our little GS community, and they don't take well to new members shouting the odds, or issuing commands. I doubt Surflounge will be replying to you again!

Softly softly, catchy monkey.

Jim

[Padonak]

Oh no I did not mean to be rude, sorry if it sounds like that.
I know what kind of people are on this forum've been reading it for 4-5 years, just never posted here, most of the question were answered by search. ( which is great!)

I am saying that we have a name. It is original ( there is no other band with the name like that) There is a definition of the name in medical dictionary, but we changed spelling a bit. I think question with website is answered now. It will either cost us, or we have to go with .net(it just does not as professional to people) or we can do www.OURBANDNAMEMUSIC.COM. There is no easy way or cheap way to get www.OURBANDNAME.com website if its registered by someone else.

The most important question out of all is: Service mark or trademark, or both?
Is it a trademark to sell merch and service mark to play shows, but bands do both... is one of them sufficient enough to protect name and logo.

I've read the law but man... I am a Biology major for a reason.

Originally Posted by God damn trademark law

Is the name of a band a trademark?
It depends on how it is used. A band name may function as a service mark for entertainment services in the nature of performances by a musical group if it is used to identify and distinguish the service of providing live performances (see TMEP § 1301.02(b) , or as a trademark for a series of musical recordings (see TMEP §§ 1202.09(a) et seq .).


1301.02(b) Names of Characters or Personal Names as Service Marks

Under 15 U.S.C. §1127, a name or design of a character does not function as a service mark, unless it identifies and distinguishes services in addition to identifying the character. If the name or design is used only to identify the character, it is not registrable as a service mark. In re Hechinger Investment Co. of Delaware Inc., 24 USPQ2d 1053 (TTAB 1991) (design of dog appearing in advertisement does not function as mark for retail hardware and housewares services); In re McDonald’s Corp., 229 USPQ 555 (TTAB 1985) (APPLE PIE TREE does not function as mark for restaurant services, where the specimen shows use of mark only to identify one character in a procession of characters); In re Whataburger Systems, Inc., 209 USPQ 429 (TTAB 1980) (design of zoo animal character distributed to restaurant customers in the form of an iron-on patch not used in a manner that would be perceived as an indicator of source); In re Burger King Corp., 183 USPQ 698 (TTAB 1974) (fanciful design of king does not serve to identify and distinguish restaurant services). See TMEP §1202.10 regarding the registrability of the names and designs of characters in creative works.
Similarly, personal names (actual names and pseudonyms) of individuals or groups function as marks only if they identify and distinguish the services recited and not merely the individual or group. In re Mancino, 219 USPQ 1047 (TTAB 1983) (holding that BOOM BOOM would be viewed by the public solely as applicant’s professional boxing nickname and not as an identifier of the service of conducting professional boxing exhibitions); In re Lee Trevino Enterprises, Inc., 182 USPQ 253 (TTAB 1974) (LEE TREVINO used merely to identify a famous professional golfer rather than as a mark to identify and distinguish any services rendered by him); In re Generation Gap Products, Inc., 170 USPQ 423 (TTAB 1971) (GORDON ROSE used only to identify a particular individual and not as a service mark to identify the services of a singing group).
The name of a character or person is registrable as a service mark if the record shows that it is used in a manner that would be perceived by purchasers as identifying the services in addition to the character or person. In re Florida Cypress Gardens Inc., 208 USPQ 288 (TTAB 1980) (name CORKY THE CLOWN used on handbills found to function as a mark to identify live performances by a clown, where the mark was used to identify not just the character but also the act or entertainment service performed by the character); In re Carson, 197 USPQ 554 (TTAB 1977) (individual’s name held to function as mark, where specimen showed use of the name in conjunction with a reference to services and information as to the location and times of performances, costs of tickets, and places where tickets could be purchased); In re Ames, 160 USPQ 214 (TTAB 1968) (name of musical group functions as mark, where name was used on advertisements that prominently featured a photograph of the group and gave the name, address, and telephone number of the group’s booking agent); In re Folk, 160 USPQ 213 (TTAB 1968) (THE LOLLIPOP PRINCESS functions as a service mark for entertainment services, namely, telling children’s stories by radio broadcasting and personal appearances).
See TMEP §§1202.09(a) et seq. regarding the registrability of the names and pseudonyms of authors and performing artists, and TMEP §1202.09(b) regarding the registrability of the names of artists used on original works of art.
1202.09(a) Names and Pseudonyms of Authors and Performing Artists

Any mark consisting of the name of an author used on a written work, or the name of a performing artist on a sound recording, must be refused registration under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127, if the mark is used solely to identify the writer or the artist. In re Polar Music Int’l AB, 714 F.2d 1567, 221 USPQ 315 (Fed. Cir. 1983); In re First Draft, Inc. 76 USPQ2d 1183 (TTAB 2005); In re Peter Spirer, 225 USPQ 693 (TTAB 1985). Written works include books or columns, and may be presented in print, recorded, or electronic form. Likewise, sound recordings may be presented in recorded or electronic form.
However, the name of the author or performer may be registered if:
(1) It is used on a series of written or recorded works; and
(2) The application contains sufficient evidence that the name identifies the source of the series and not merely the writer of the written work or the name of the performing artist.
If the applicant cannot show a series, or can show that there is a series but cannot show that the name identifies the source of the series, the mark may be registered on the Supplemental Register in an application under §1 or §44 of the Trademark Act. These types of marks may not be registered on the Principal Register under §2(f).
See also TMEP §1301.02(b) regarding personal names as service marks.


For the most part, band logos can be considered an original and creative form of art – assuming the logo is more than just the name of the band without an artistic element. As such, they can be protected under Copyright Law as a Visual/Artistic work.
Just to ensure this is clear, the artwork for the logo can be protected under copyright law, but not the name of the band itself. This is because copyright law does not protect names, slogans, or catch-phrases. If you were looking to protect against other bands using your actual name vs. the artwork, this would fall under Trade-Mark Law.

Important thing is what is a series of works.. EP ALbum Live REcording?
Or t-shirt EP patch shot glass?
There is not a word about if service mark includes the logo too... etc...

[jimcroisdale]

Sorry my friend - bad day at work here. Hope someone is along to help you soon!

Jim

[Padonak]

No worries I am fine 8-)

I did find a website that gives a little more insights on that. But it is still... blurry... freaking lawyers.
Basically it comes to:
1. Trademark is sufficient enough for both. Cause if you trademark something it expands to more than just a name. Like for music its logical within a field to sell merch, cds, play shows etc.
2. You cant just sell one patch to your drummer and consider it was a trade and register a trademark. You have to use your name extensively in all those fields and than go and register trademark. (Besides even if some else tries to still it .. they have to go through the same process which is hard)


I would like to hear from somebody that went through this process.

[TranscendingM]

Hi Padanok,

The basic way of looking at is "Trademark" covers a product. "Servicemark" covers a service.

As a musical act, you are a service. If, let's say ALL you do is make CD's but never play live, then maybe your name could only apply to a product in which Trademark would be fine. But for most bands/artists who record and play live, it's a service first, a product second.

Mind you, when you are filing, it's all the same form, this is just a technicality. You'll still use the ® [little (R) in a circle] when you are registered. "TM" & "SM" can be used anytime and used with "trademark pending".

[Padonak]

See I got it all backwards 8-)

Does service mark cover merch?

[TranscendingM]

Originally Posted by Padonak

See I got it all backwards 8-)

Does service mark cover merch?

Always think, you are a service and that the band is the source and essentially the prime product so to speak. That means without a CD you still exist. You make music and play it. Right? It's different from say a fast food service, in which if the food wasn't there, then really they are nothing. Their products are what make them, that's why they will deal more with trademarking. So yes, as a band service marking a particular name in a logo will cover what it's on i.e. t-shirt

[Padonak]

Just got off the phone with the entertainment/trademark lawyer. He said to start using TM at the end of the name, which means Trademark Pending, but in fact it means that you claim your rights to that name, and if anybody a week later tries and registers it with USPTO, they are screwed anyway. To do service mark we need to play gigs out of state, have record of selling CDs, have a big internet following, having reviews in the magazines, radio play etc. If we want to trademark merch etc... than its 300-1000 per categories in just fees. And like shot glasses and t-shirts are different categories as well as gigs and CDs. But the truth is... if we copyright logo and artwork ($35 for each)no one else can use it without consent. Soo that sums it up... Copyright everything - it's cheap. Service mark the name when you are big enough for that. Some one else can still release a video game with your BAND NAME, but not the logo, cause it's in the different category.


The only thing i am gonna try to do is to get a hold of that site owner just to see how much it will be to get that domain name.

[TranscendingM]

Originally Posted by Padonak

Just got off the phone with the entertainment/trademark lawyer. He said to start using TM at the end of the name, which means Trademark Pending, but in fact it means that you claim your rights to that name, and if anybody a week later tries and registers it with USPTO, they are screwed anyway. To do service mark we need to play gigs out of state, have record of selling CDs, have a big internet following, having reviews in the magazines, radio play etc. If we want to trademark merch etc... than its 300-1000 per categories in just fees. And like shot glasses and t-shirts are different categories as well as gigs and CDs. But the truth is... if we copyright logo and artwork ($35 for each)no one else can use it without consent. Soo that sums it up... Copyright everything - it's cheap. Service mark the name when you are big enough for that. Some one else can still release a video game with your BAND NAME, but not the logo, cause it's in the different category.


The only thing i am gonna try to do is to get a hold of that site owner just to see how much it will be to get that domain name.

Probally $1000000000000

Just becareful man, good luck