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Copyright infringement notice?
Old 15th October 2018
  #1
Gear Head
 

Copyright infringement notice?

I know a legal question may be misplaced here, but there is high activity in this sub so I thought I would give it a go. I received an email today from a distributor saying that my release had a copyright claim put on it. I did a little bit of research and found out it was not the music but the project or "band" name. I contacted the guy directly who put in the claim (never heard of him or his music/project name) and said that our names were too close and it is messing with his Spotify algorithms. He said he is ready to lawyer-up about it too. It is not a big deal to me to change the name as it is simply a side project. For reference the names are "Crane Technique" and "The Crane Kick Technique". Does this warrant the claim he is making?

Thanks
Old 16th October 2018
  #2
Lives for gear
 
Jeff Hayat's Avatar
 

First, ask the guy if he has trademarked the band name. Then read these two arts:

How to Copyright a Band Name | Your Business

When Two Bands Have the Same Name: A Legal Guide...

Here's a worthwhile quote:

If a trademark owner fails to take protective measures, competing uses of similar marks can weaken the mark by diluting the distinctiveness of the owner’s designations, thereby reducing the public’s association between a particular mark and its owner. Large corporate trademark owners annually spend tens (sometimes hundreds) of thousands of dollars to register their marks, to police them in the marketplace, and, where necessary, to bring lawsuits to enforce their rights when other parties tread too closely. While most artists and labels typically do not spend this level of money to police their marks in the marketplace, they should note that with the use and ownership of a trademark comes an obligation to protect the trademark. Even though a fledgling artist or label likely cannot afford the significant costs of litigation often associated with an aggressive trademark enforcement strategy, registering a trademark is still a good idea because it grants a nationwide “zone of protection”and puts all other potential users of the mark on notice of the artist’s or label’s use of the trademark. It is advisable to consult an attorney about a proper enforcement strategy, and in many cases a registration combined with a simple demand letter (crafted by or with the advice of an attorney) can be sufficient to deter infringing activity.

SG: How do courts analyze cases of trademark infringement?

Using trademarks, bands, artists, and record labels have the ability to distinguish their unique goods and services from their competitors in the marketplace. The test for determining whether a junior user’s trademark infringes a senior user’s rights is whether the junior party’s mark is likely to cause confusion. This test applies regardless of whether the plaintiff’s mark is registered. Courts examine a variety of factors in order to assess whether two marks are confusingly similar, including: (1) the strength or weakness of the plaintiff’s mark [4]; (2) the similarity of the two marks in terms of sound, appearance and meaning; (3) the similarity of the parties’ products or services; (4) the similarity of purchasers and the channels of trade for the products or services; (5) the similarity of advertising media; (6) the degree of care that purchasers are likely to exercise; (7) the defendant’s bad faith (or lack thereof); and (8) evidence of actual confusion among purchasers. (These factors vary slightly based on jurisdiction, but the differences are not significant. )A party who loses a trademark infringement suit can be forced to stop using the trademark at issue and to pay money to the other side, sometimes including the other side’s attorneys’ fees. The amount of money awarded in trademark damages may be significantly increased where the infringer acted willfully and/or used a counterfeit mark. Monetary damages are typically measured in terms of actual damages suffered by the plaintiff and/or in terms of the profits enjoyed by the defendant as a result of the infringing use.

Potential for a dispute exists especially where there is a possibility of confusion stemming from two bands using an identical or highly similar trademark/band name to offer identical or highly similar goods and services (e. g. , recorded music and concert performances). For example, if we (James and Ashford) began selling our own original recorded rock music under the name GRATEFUL DEAD, there is a significant chance that any consumer purchasing our music would do so with the belief that we were the “real” Grateful Dead and would doubtless be disappointed to hear whatever we recorded instead of the original band. This likelihood of confusion would be increased if we also used the Grateful Dead’s famous “steal your face” logo (shown above). And if we marketed our rock band’s concerts under the name AEROSMITH, concertgoers probably would feel cheated when James and Ashford took the stage. For further illustration, note that if we used the name AIRSWIFT, standing alone, it might not infringe the AEROSMITH mark; but, if we used the AIRSWIFT name in conjunction with a “wing” motif and Aerosmith’s unique typeface (shown above), there could be an infringement problem. Trademark law should and generally would provide the Grateful Dead and Aerosmith with the ability to stop us from using their names or logos, or from using confusingly similar names and logos.


Is there likelihood of confusion here? You could make arguments both ways. If this is only a side project, and the name is not important to you, you may want to just change the name. If it does bear some importance, make an offer to the guy to buy you out, making a point that it ill be a lot cheaper for him to do that, as opposed to "lawyering up".

Cheers.
Old 16th October 2018
  #3
what Jeff said!

Also, if he never actually trademarked his name, then you can tell him to go pound sand if you want to. Save the email exchanges. I don't know if it's worth it for you to register the trademark. It costs about $1500~$2000.

But definitely let him know you would be willing to let him buy you out of the name... don't just change it without some sort of financial compensation. It's going to cost him at Least $1500~$2000 to trademark it himself if he hasn't already done so... and to sue you over it will cost him at least $10,000 or $20,000 in legal fees... so if he is willing to spend all that money to get you to change the name... see how much he'll pay you for it....

or you can have your lawyer talk to him and negotiate the price for you. Might cost you a couple hundred bucks in legal fees and could potentially make you $5000 or $10,000.
Old 16th October 2018
  #4
Trademarks are typically judged by first-to-market - if he's been using the name commercially for a while you're likely out of luck, even if he didn't trademark it; trademarks work differently than copyrights. This very thread would be evidence that he pre-existed your claim. Also, Spotify's algorithm is not how a judge would decide - that would make programmers the executors of law. A judge would look at the case for market confusion, which can be a very low threshold (depending on the judge).

All that said, if it is no big deal, I'd just change the name.
Old 22nd October 2018
  #5
Lives for gear
 
gsilbers's Avatar
 

Those "claims" are halarious. The ones in youtube as well. Just poeple who dont know anything about copyright just claiming things because of streaming companies odd policies who called things their own legal way and of course blatantly disobey real copyright laws while paying huge amount of money to congress and lawers so it stays the same way.
anyways.. if there is a real claim then deal with that. if its just one of those strike down pltaform things maybe just delete that track and upload another one. Or tell the distirbutor to actually do some work and have them deal with that. thats what a distributor does.
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