Legal Question in Intellectual Property in Colorado
Band Names
My band has been playing under our name that we have become quite attached to since 2000. There is another band from Gemany with the same name. They claim on one website to have been together since 1995 but only have one CD out. The CD was put out in 2005. They seem to have somewhat of a following in the United States and thier CD is available many places on the internet. I'm not sure what trademark (if any) is owned by this band. If I was to trademark the name before they do, would I be free and clear to use the name?
3 Answers from Attorneys
Re: Band Names
Have they been active in the US marketplace?
How about your band?
Are you members of ASCAP?
Call or email for further assistance.
Re: Band Names
How Do I Protect the Name of My Band?
By Michael McCready
Attorney at Law
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The two key concepts involved in "protecting" the name of a band are "territory" and "priority". Territory means the area where you use the name, e.g., Chicago, Illinois, Mid-West, United States, world-wide, etc. Priority, as the word implies, involves who uses the name first. These two concepts work together to limit the scope of protection for a name.
If you started using your name first, you can prevent others from using it. However, the law allows you exclusive use of the name only in the area where you have used it. For example, if you started playing the Chicagoland area in 1989 and never played or distributed music outside the Chicagoland area, you could not prevent a band from using the name in Florida. However, they could not use the band name in Chicagoland since you were the first to use the band name there. You also may acquire the rights to your name for Chicago in 1989 and nation-wide in 1992 when you release your first record for a major. If someone started using your name in another part of the country in 1990, you could not prevent their use in their territory since they have priority in that area.
Re: Band Names
It will depend where they have filed their mark, if anywhere. Feel free to contact me on this; my firm focuses on Internet and entertainment law.
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