BENEFITS OF REGISTERING THE TRADEMARK TO YOUR ARTIST NAME
By Lacey Allen
Beyond serving as an identifier, your artist name is a powerful tool for building a brand that has the potential to grow your audience, improve your market appeal, and increase your visibility in the music industry. As you build your music career, it is important to think about how you can protect your musical identity using trademark protection.
Understanding Trademarks
Trademarks are words, phrases, or symbols that serve as unique identifiers for brands, services, and products. Their main purpose is to help consumers easily identify the source of products or services in a manner that helps guide their expectations. For instance, when you think about Air Jordans you probably picture a particular type of footwear with the Jumpman logo, and when you think about Mcdonald's, you visualize golden arches and specific fast-food offerings.
Trademarks work similarly in the music industry by helping fans identify artists. Much like how Air Jordans and McDonalds evoke certain expectations, the mention of the names Lady Gaga, Bruno Mars, Dr. Dre, and Eminem bring to mind their unique artistic identities.
Benefits of Registering Your Artist Name
Under United States Trademark law, owners are granted specific rights over their trademarks as soon as they are created. However, the extent of protection depends on whether or not the trademark is registered with the United States Patent and Trademark Office (USPTO).
1. Official Trademark Ownership
Registering a trademark with the USPTO is a lengthy and thorough process that includes thorough searches to ensure there are no conflicting registrations. If you are successful in registering your name, you are presumed to be the rightful owner, assuring that you are not unintentionally infringing on an existing trademark. Without registration, there is a risk that you are unknowingly infringing on an existing trademark. If this is the case, you may face liability for monetary damages and may be forced to rebrand in the future. It’s just a matter of when the trademark owner becomes aware of you.
2. Exclusive Rights
Registering a trademark gives the owner exclusive rights to use the trademark within related industries. For example, another athletic brand cannot adopt the name “Air Jordans,” nor can another fast-food establishment use the name “McDonald’s.” Similarly, in the realm of music, no other musician can brand themselves as Lady Gaga, Bruno Mars, Dr. Dre, or Eminem.
When a trademark is unregistered, the exclusive rights of its use may be confined to a specific geographic area. For example, multiple unregistered trademarks for restaurants named “Gambino’s” may exist in different states. However, upon receiving registration, the registered owner gains the right to expand the use of the name nationwide, whereas unregistered owners remain restricted to their current location.
Trademark ownership also prohibits unauthorized uses that could mislead consumers or harm the trademark’s reputation. This includes prohibiting false endorsements, misrepresentation, and other unauthorized uses.
3. Legal Remedies
Both unregistered and registered trademarks offer legal avenues to address infringement, but they offer different degrees of effectiveness.
First, a crucial step for a successful infringement lawsuit is proving ownership of the mark, which can be challenging, especially if there is a real issue as to who used the name first.
Secondly, unregistered trademarks offer limited options for legal recourse. Typically, owners of unregistered trademarks are limited to pursuing actual damages — how much money did you lose / the other party unlawfully gain, directly due to the infringement? Unfortunately, this can be hard to prove, as the infringing party will surely argue their profits were due to other factors. Furthermore, the ability to only pursue “actual damages” may discourage some people from enforcing their rights.
In contrast, under the Lanham Act, federal trademark protection allows you to pursue remedies such as an injunction, or statutory damages ranging from $1,000 to $200,000. Statutory damages may include “disgorgement of profits,” which means you may be entitled to all of the defendant’s profits related to the infringement, without having to prove the direct, causal link.
4. ENFORCEMENT
It is important to note, that while trademark registration provides rules and remedies, it does not enforce itself. As a musician, you would be responsible for identifying any activities that infringe on your rights. This may involve self-monitoring or using a trademark monitoring service that utilizes software to monitor the internet for potential infringement. If any infringement is detected, an attorney can assist you in sending cease and desist letters or escalating the matter into a lawsuit if necessary.
Limitations of Trademark Protection
Furthermore, registering the trademark of your artist name does not give you absolute authority on how it is used. Trademark protections are limited to unauthorized uses of your name only in ways that may mislead or confuse consumers.
Trademarks are only protected in specific classes, typically limited to similar industries and uses. For instance, while Aerosmith is a registered trademark for music-related purposes, it doesn’t necessarily prevent someone from using the name in unrelated industries such as automotive or electronics. This is because the fundamental purpose of trademark law is to protect consumers from confusion. It’s unlikely that people would mistake the band Aerosmith for a vehicle or computer with the same name.
In addition, fair use exceptions may allow for the use of your name in certain contexts. Fair use is a legal concept that allows others to use protected names for purposes such as criticism, comment, and news reporting. For instance, someone may write an article about your recent album or a performance. Whether the review is positive or negative, the use is likely considered fair use and does not constitute infringement.
How to Obtain Trademark Protection
Eligibility for trademark protection requires adherence to specific criteria outlined by the USPTO and is a compilated process. Because of the complex nature of trademarks, it is recommended that anyone seeking registration contact an attorney familiar with the process. Contact us at the Law Office of Adam C. Freedman, PLLC to learn more about trademarks and the specific issues you might run into.
