Whether you are a solo artist or a member of a band, you can protect your brand by ensuring that your fans know that you or your band are the source of your music. You can take advantage of federal trademark protection by filing an application with the United States Patent & Trademark Office (“USPTO”) and register your brand. Before filing an application, a musical artist must keep in mind several basic rules.
The first rule is that an applicant cannot gain federal trademark protection for a single creative work. This means the title of a single work cannot be the subject of a trademark application. Generally, a creative work will not be considered a single creative work if there is evidence that it is a part of a series. The name of a performing artist or the name of a band may be registered as a trademark, but not the name of a single song or a single album. The proposed trademark must be used on a minimum of two creative works to be considered a series. See the firm page entitled, Book Titles and Titles of Single Creative Works for suggestions for ways to seek protection for related services of single title works. See also, The Trademark Manual of Examining Procedure §1202.08 Title of A Single Creative Work, for more information on this topic.
A second rule to keep in mind is that if you’re seeking to register your name or stage name (a portrait, signature or pseudonym) as a trademark for goods or services you will need to provide two types of evidence. Evidence that use has been made on a series of creative works and that the mark has been used to identify the source of the goods or services. The latter type of evidence means the performer must prove it has control over the trademark and the quality of the goods or services. Most typically the artist will submit a verified statement that they publish or produce the goods/music and that they control the quality of the goods/music. In the alternative, an applicant could produce advertising material showing the artist or band name as the source of a series of recordings, submit copies of third-party reviews that reference at least two types of creative works in the series or show evidence of use of the mark on a website in association with at least two creative works.
Another important rule to consider before filing your application is that if the mark consists of a name, portrait, or signature of a living person, the USPTO requires written consent for use and registration of the name. This consent must be personally signed by the individual named in the trademark. The rationale for this rule is to protect a person’s right to privacy and publicity to control the commercial use of one’s own identity.
What goods and services are typically named in the trademark application filed by a musical artist or band? The most common goods and services identified are musical sound and video recordings in class 9, compact discs and DVDs featuring music in class 9, digital media namely downloadable music files and downloadable audio and video recordings in class 9, and entertainment services for live musical performances, personal appearances, and for providing non-downloadable prerecorded music and videos on-line via a global computer network in class 41. Examples of specimens for goods that are not downloadable may include images of at least 2 CDs or DVDs showing the trademark as a source indicator which means the CD or DVD will have a different title for each in the series, different than the trademark itself or a webpage display of the goods showing the CD or DVD, a description of the goods, a price, and a shopping cart link. For downloadable music, a typical specimen would include a webpage showing the mark for more than one creative work and a download or equivalent link.
There are several special rules and requirements for trademarks consisting of a musical artist’s name. If you are thinking of filing this type of application you should consult with an experienced trademark attorney before applying at the USPTO. If you have questions concerning trademark protection for creative works, or other trademark questions, please contact the firm for a courtesy consultation.