GETSIGNED.COM PRESENTS THE LAW ARENA MUSIC BUSINESS
LEGAL ISSUES Just as important as the name of a band becomes in creating a desired
image to the public, so is the protection of that name for purposes
of merchandising. For example, if your band develops its fan base without
acquiring the right to protect that name, it may find itself unable
to assert the benefits of U.S. Trademark law (the Lanham Act) in the
event you discover that either another band has begun to use the name
or that your band name is being reprinted on bootleg merchandise. Still
another issue arises with band names when members split off and continue
to try to exploit their affiliation. The proper means of protecting your band's name is through the First, you should assure yourself that no one else has previously
developed and used the name of your band. If you avoid this step and
file an application, it may be rejected because someone else has already
acquired the name. The best method of searching for prior use is to
hire a search firm such as Government Liaison Services at 1-800-642-6564
(ask for Bob Forbes). The problem with this type of search is the expense.
It can cost from $200 up to as much as $500. You can avoid this expense
by checking with the Trademark Office for the closest library that maintains
In my last article, I described the initial stages of the process
by which a band could acquire federal trademark protection for its name.
In this presentation I will round out the picture. Before I continue,
I have done an internet search and found numerous services that will
allow you to conduct an on-line search of your name relatively inexpensively.
Remember, however, if they only search past registrations and not up-to-date
applications or trade publications you are not getting the full picture.
One on-line service I have had experience with is Micropat found at
http://www.micropat.com. There are many others so look before you buy.
As for the application process itself, there are generally two types
of applications that you will want to consider. One is for a name already
being used and the other, called an intent-to-use application, are for
those applicants that have yet to use their name in interstate commerce. Interstate commerce is the key to obtaining a federal mark because
unless you use the trademark across state lines, the federal government
has no authority to regulate such commerce and therefore cannot authorize
the granting of the trademark. If you find yourself in this predicament,
contact your state’s Secretary of State about filing a state trademark
application. This may serve your needs until you expand beyond your
current state. On the other hand, if you are either planning to travel
beyond your home state in the near future or will be doing so within
a year, you may forego the state trademark process in favor of an intent
to use application. Essentially, this application requires you to express
a bona fide intention to use the mark within a year from the submission
of your application. In this way you can apply even though you presently
do not qualify for approval. The concept is that by the time the trademark office has examined
your application to determine if there is any conflict between your
proposed mark and any existing, approved marks, you will have gotten
to the stage of use in interstate commerce and the application can then
be completed. Although the measuring gauge is one year, it has been
my personal experience that the Trademark Office is far behind and will
not respond for approximately nine months. Thereafter you will be given
six months to establish proof of use and this may be extended as many
as four times with good cause. Therefore, you actually have some leeway in planning that first interstate
use of the name. In case any of you are unclear as to what constitutes
interstate commerce satisfactory to qualify for the application process,
a gig in a state other than your home state, a radio interview broadcast
in a state other than your home state, or a web page that can be accessed
by fans and consumers in a state other than your own all satisfy this
requirement. To be continued– Next time, I will describe the process and the examiners
criteria for validating your application. Mr. Beitchman, a graduate
of the Georgia Institute of Technology and the University of Georgia
Law School, has been practicing in the area of entertainment law and
intellectual property law for over twenty-two years. His clients include
popular music groups, authors, record companies, independent film producers
and public corporations. Among the music groups Mr. Beitchman has represented
in the past include Atlanta Rhythm Section, Kansas, and The Producers,
and he is currently representing Vigilantes of Love (Capricorn/Mercury),
Third Day (Reunion/Silvertone), Stuck Mojo (Century Media), Mindset
(FAD), and unsigned acts Wolfgang Parker and the Jumping Terrors, Three
Lost Souls, Shaker Day, and Blacklight Poster Boys. Mr. Beitchman is
a past officer of the Georgia State Bar Association section on Entertainment
and Sports Law and has served in official capacities for NARAS, the
"Grammy" organization, and the Atlanta Songwriters Association.
He has also taught in the areas of music, films, book publishing and
intellectual property and has been a panelist for numerous seminars
covering these topics. Recently, Mr. Beitchman appeared as an expert for an interview on
CNN Sunday Morning. Mr. Beitchman is also a principal in the organization
operating the Atlantis Music Conference in _________________________________________________________________________________ |