Service Mark vs. Trademark
It is important to understand the differences between a Service Mark and a Trademark.
Meaning: Any word, name, symbol, device, or combination of these used, or intended to be used to identify/tell apart the
services of one provider from the services provided by others.
It also helps to indicate
the source of the services. Since a band provides entertainment services, registration
of the band's name as a service mark is the proper type of legal protection.
However,
this is a personal call as to whether or not you go this avenue with registrations.
A Service Mark identifies a service rather than a product.
MUSIC TRADEMARK
Your band's name is possibly the most valuable asset a group can own. Your bands name can be protected
legally by Trademark Registration. This is a Federal Registration. (In contrast, a Registered State
Trademark only protects your mark in that particular state. A federal trademark protects the mark nationally.
Even if a mark is only used locally, federal registration will allow expansion of the use of the mark anywhere
in the U.S.) Trademarks can not only protect your bands name, but the name of your merchandise, label and/or
publishing company. Ownership of your band's name is important. In the event that your band breaks up, who
owns it then? Your band mates should clearly agree about who owns the legal rights to your band's name.
You can obtain trademark protection for you or your band's professional names through the United States Patent
and Trademark Office. For those outside of the U.S., there will be a section on this site pertaining to your
facilities of registration. Since trademark rights are based on use, it's recommended to first do a search to
gather if the same name or similar name is already being used. For instance, if you intend to perform or release
your music nationwide and another band has been using the same name before you, they could have rights superseding
within a particular state and prevent you from using that name there. Often, a more successful band will have to
buy out the local band's rights. This can be a very expensive situation...
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If you are expecting or anticipating that your band stands to move hundreds or even millions of copies of your
music just from your bands name alone, or that you may sell-out certain venues, Trademark protection is extremely
important. We have all heard those stories of bands having to change their name after gaining that bad ass loyal
following just because another band somewhere else was using the same damn name. Avoidance of this situation is key.
Many bands do not think of the critical steps of protecting their trademark when making the jump from a local band
to a national act. Failure to establish ownership of your bands name can become hideously expensive and frankly,
very shitty to deal with. You’re looking at CD sales, gig promotions… the good stuff. It is not generally easy for
a band to have to change their name because another one beat them to obtaining rights to that name or even that
logo you thought for sure belonged to you. There is a possibility of trademark infringement and major lawsuits
heading your way. (A $100,000 is not an unrealistic amount to look at when these cases arise)
Trademark registration of your band name as a service mark is the best way to retain your rights to a great name.
Very few bands will survive having to re-establish their identity under a new name, let alone be able to handle
the expense of reprinting CDs, flyers, t-shirts, and all other promotional material.
Advantages of Federal Trademark Registration Are:
* Anyone using a "similar" mark can be legally stopped.
* You have legal presumption of ownership of the trademark.
* Registration can be used as a basis for obtaining registration in foreign countries.
* Registration provides substantial ammo against possible infringement.
* You have exclusive use of the trademark nationwide in connection with the merchandise or services indicated.
* You have the right to sue in federal courts for trademark matters.
* You can potentially receive money damages for infringement of up to triple the actual losses.
* Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign merchandise.
* Constructive notice nationwide of the trademark owner's claim.
* You are allowed use of the ® symbol or the words "Registered Trademark."
* It can increase the value of your trademark as a business asset.
* After five years, the trademark owner's rights become incontestable.
* It can prohibit the registration or use of an Internet domain name that infringes the trademark.
* You have legal presumption of ownership of the trademark.
* Registration can be used as a basis for obtaining registration in foreign countries.
* Registration provides substantial ammo against possible infringement.
* You have exclusive use of the trademark nationwide in connection with the merchandise or services indicated.
* You have the right to sue in federal courts for trademark matters.
* You can potentially receive money damages for infringement of up to triple the actual losses.
* Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign merchandise.
* Constructive notice nationwide of the trademark owner's claim.
* You are allowed use of the ® symbol or the words "Registered Trademark."
* It can increase the value of your trademark as a business asset.
* After five years, the trademark owner's rights become incontestable.
* It can prohibit the registration or use of an Internet domain name that infringes the trademark.
Approval
Once approved, trademark registration is valid for ten years and may be renewed for additional ten year terms as long as you continue to use the mark in commerce in connection with the goods/ merchandise or services specified.. Note: Obtaining a Trademark can take up to 12 weeks befor filing is approved if no one contests it.
Make sure the charge for filing INCLUDES THE USTPO (United States Patent and Trademark Office) should you find someone claiming to do it for $99.
A USTPO costs around $325- $375 per class of goods and services covered by the mark(s).
You may file your trademark application online using TEAS - the Trademark Electronic Application System.
The United States Patent and Trademark Office (USPTO): http://www.uspto.gov/#
European Patent Organization (EPO)
