The last thing you want is to release your first album only to find that another band or artist has been using the same name as you in another part of the world.
Even worse, if the other artist is gaining traction earlier than you, you'll have to put in extra work to gain recognition for your music and brand.
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Additionally, if another artist registers the trademark before you, your music could be subject to takedown notices just for using the trademarked name, even if you own the songs.
Changing your name too late can be costly. Not only will you have to change your name and design a new logo, but if you've already released singles, records, and merchandise, you'll have to re-release these with your new brand name, and pay any fees associated with the redistribution of your music.
Do you copyright a band name or trademark it?
When it comes to copyright vs. trademark, it's easy to get confused.
While these terms seem interchangeable, they actually cover different types of intellectual property protection.
According to the United States Patent and Trademark Office (USPTO), trademarks protects "word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services."
A copyright, however, protects literary, dramatic, musical, artistic, and certain other intellectual works.
For musicians, this means that you will need to copyright your songs to protect them, but to protect your band or musician name, you'll need to trademark them.
Protecting your band, artist, or stage name - DIY vs. seeking professional help
While copyright is a more straightforward process, trademark can be more complex, so I'd recommend hiring a music attorney or using an online trademark registration service like the one offered by LegalZoom to make sure you get this right the first time, as a mistake in trademark registration can be expensive to fix.
It's not just me, the USPTO recommends this too.
However, if you want to do it yourself, or wish to be more informed about the process, here are the steps to trademark a band name.
How to Trademark a Band Name
1. Is your band name taken? Here's how to check
The first step in trademarking your band name is to check to see if your band name is actually taken - and trademarked.
Don't skip this. If you try to register a trademark that's already taken, not only do you not get the trademark, but the filing fees will not be refunded.
To check if your band name is taken, you can quickly search Google your proposed band names to see if any websites or social media profiles of artists show up. Since most social media profiles and pages show up in Google, this can save you from searching each social network individually.
If a band isn't popular enough and their name is similar to other products, services, activities, etc., they may not show up in the search results for their name yet. To get around this, when using Google to see if your band name is taken, include words like "band" and "music" after the band name.
If your band name is taken, I still recommend checking to see if it's trademarked. If someone is using your ideal band name and they haven't trademarked it, you can still get the trademark for that name to use it for your band. Federal trademark protection goes to the person or entity that's first to register it, not the first to use it. However, another band may still have trademark protection in their local area.
If your band name isn't taken, awesome! However, you aren't done yet. You still need to check to see if the band name is trademarked.
Head over to the USPTO website and check for registered or pending trademarks.
If you don't find anything that resembles your band name, you're in the clear!
Be sure to check for similar names and misspellings. Choosing a name that's too close to someone else's can cause problems.
To avoid costly trademark conflicts before you apply, it's important that you conduct a proper trademark search. If you aren't comfortable doing this on your own, you can have an attorney conduct the trademark search for you, or use an online service like LegalZoom for your trademark search.
2. Consider who will own the trademark
It's important to be prepared for the worst.
What if a band member leaves? Who owns the trademark then?
It may be a good idea to set up your band as a business entity so that you can give ownership of the band name to the company rather than an individual.
General Partnerships (or Sole Proprietorships if you're a solo musician) are generally the first type of business structure that comes to mind and are formed most easily. The problem with this structure, however, is that if you get into legal trouble, you're personally liable for any damages.
Corporations act as an individual entity to protect you from personal liability if the band happens to get into any legal trouble, but this structure is fairly expensive to set up and maintain.
A Limited Liability Company LLC is the best business structure choice for musicians for a number of reasons:
- It can protect you from personal liability in legal disputes.
- It can provide the simple structure of a partnership with the benefits of a corporation.
- Band members can easily enter or leave without disrupting the system.
- Expenses can be more easily written off as business expenses.
You can set up an LLC quickly and relatively inexpensively through LegalZoom.
3. Register your trademark - fill out the form
The USPTO allows you to easily submit your application online using the Trademark Electronic Application System (TEAS), which you can access through their website here.
There are three different types of TEAS applications:
- TEAS Plus
- TEAS Reduced Fee
- TEAS Regular
The USPTO has put together this video to explain the differences:
4. Pay the filing fees
Once you've filled out the appropriate form, simply pay the required filing fee.
The filing fees are as follows (updated February 2017):
- TEAS Plus: $225
- TEAS Reduced Fee: $275
- TEAS Regular: $400
While it's possible to go through the trademark process on your own, it is easy to make mistakes. As mentioned above, I highly recommend consulting a music industry attorney or using an online service like LegalZoom for trademark registration to ensure things are done correctly. The filing fees are quite expensive, and you don't want to have to pay those again.
In addition to trademarking your band name, you may also want to trademark your band or artist logo to protect your whole brand.