It may not seem like a high priority at the outset of your career, but if you’re recording music, putting it online, and taking it on the road for people to hear and, hopefully, buy, then it’s wise to make the early investment in (at least) a band name search. And then trademark it before any headaches and legal bills start to pile up. It’s a nuisance best met head-on. Don’t confuse this with copyrighting – you can’t copyright a name in Canada, but there are several ways to gain the protection of a trademark, including doing nothing at all.
A name is your brand, the foundation upon which you build the image of your band. It’s your flag, and you want to fly it high and make it undeniably, legally, and perpetually yours. The last thing in the world you want to see when your group gets its first smattering of recognition is a Cease and Desist order from a bunch of guys in another town (or worse, another country in which you’ve just booked a tour) who cooked up the same name three weeks before you did. Just ask the boys in the bands Bush X, Charlatans UK, Blink 182, and Dinosaur Jr. how much fun they had having to retro-fit their names after a legal challenge.
Or the 2015 Polaris Music Prize long-listed band Viet Cong, who had to change their name to Preoccupations after protesters strenuously objected to the band naming themselves after a brutal insurgent group that terrorized citizens during the Vietnam War. It even impinged on their ability to tour, as the band lost bookings in Australia.
There are several musician-advice websites that offer wise guidance on how to proceed with protecting your band/performance name, including a page at SaskMusic and one at DIY Musician. They all start by suggesting a name search. Just Googling the name is insufficient. There are websites, like Band Vault and Band Name that will look for similar names for about $15. If you’re planning to register a trademark you can’t just search for a duplicate of the name, you must search for similarly spelled or similar-sounding names, too – as those bands could make a serious claim against you, should they choose. You’ll want to finalize your search by checking in on the Canadian Trademarks Database at the Canadian Intellectual Property Office and – if you’re smart and have cross-border ambitions – the US Patent Office website as well. You’ll need to check in with other countries’ trademark rules if you’re planning to go worldwide.
Common law has determined that prior (first) usage is viable proof of a trademark, and if you can establish that you used the name and were recognized for it (e.g., in a review) before anyone else did, it’s yours. Even if someone else registered the name after you made your debut. On his aptly named website, Lawyer/Drummer, Saskatchewan-based lawyer (and drummer in One Bad Son) Kurt Dahl points out that, “absent a federal trademark registration, your rights in a mark are limited geographically to the scope of your reputation.” Which means, in more drummer-friendly language, if you’re just playing gigs within driving distance of home, and have been recognized for it, you can claim your dominance in that territory, but only that territory. If someone else can establish that they are more well-known or successful than you (through ticket or record sales, press clippings, etc.), then you can lose your identity, snap – just like that. How lucky do you feel? If not too lucky, then it’s time to look for a lawyer.
Of course, deciding on a band name is a most painful procedure. This late in the game it seems as though all the good names have been taken. You’ll most likely have to settle on some unsatisfactory variation on your 45th choice, but once it’s done and you’ve invested in the trademark, it’s done. Wry writer Mike Blick, in an article titled “Naming Your Band – in 10 Easy Steps,” says that “trying to find the greatest band name ever is a fool’s errand. The best you can hope for (and what most bands settle for) is the least bad band name.” To save you some time, here’s a list of the most common band names, according to curiosity.com: Bliss, Mirage, One, Gemini, Legacy, Paradox, and Rain.
The benefits of trademarking your band name are far-reaching, and imperative if you have long-term plans for success. Your brand needs protection from inferior competitors who can tarnish or diminish your reputation. It can help you protect your own products from merchandise bootleggers, and ensure the assistance of legal authorities to enforce your rights. You also might want to consider establishing the ownership of the name itself – your bandmates will appreciate that.
The last word goes to drumming lawyer Dahl, who notes that it costs about $1,000 to file a Canadian trademark registration. “I’ve dealt with several band name disputes, and can confirm that they end up costing far more than the cost of a trademark,” he says. “I appreciate that paying rent, buying a new guitar, and maintaining your tour van might take precedence, but the cost of a trademark will be money well spent. When you look at the ongoing decline in music sales, it’s hard to deny the increasing importance of ancillary revenue streams like merchandise and the increasing value of your band’s brand.”