Trademark band name, copyright band names: protecting the Name of Your Band

Considering that your band is your product and your business you will want to make sure that you can have the rights to your band wherever you perform and do business.  If you plan on just doing business in the state you reside in, then you should make sure that your band name is not being used in your state.  However if you dream big and look to the future of traveling nationally or the world, you will want to make sure that no one else out there is using the name you want to name your band.  Obviously, the more obscure the name of your band is, the less likely anyone else in the world will use that name but to be safe then name you want to use should be thoroughly investigated before making moves to protect your bands name.
There are two key concepts involved in "protecting" the name of your band and they are "territory" and "priority". Territory means the area or location in which you use the name, for example, Chicago, Illinois, United States or world-wide. Priority is who gets the first rights to the name.  These two concepts work together to limit the scope of protection for a name.
If you started using your band’s name first, you can prevent others from using it. However, the law allows you exclusive use of the name only in the area in which you are doing business in. For example, if you started playing in Chicago, IL in 2000 and never played or distributed music outside of Chicago, you could not prevent another band from using the name in, let’s say Florida. However, should the band in Florida with the same name choose to play in Chicago they would be unable to do so.  If you have set up a legal business in Chicago, IL you have territorial rights as well as priority rights to the name that will bar the band from Florida from doing business in Chicago, IL.  However, should you decide to tour and head to Florida, the band with the same name would have territory and priority rights there that would bar you from playing or doing business in that state.  So from this example you can see why it is important to research the use of the name you want to use for your band if you want to take your business nationally or even globally.
You also may acquire the rights to use your name in Chicago in 2000 and then nation-wide in 2003 when you release your first record. If someone started using your name in another part of the country in 2002, you could not prevent their use in their territory since they have priority in that area, meaning they had the name first before you registered it for national use.  To make matters even more complicated, the rise of the internet as a medium to distribute and disperse music can confuse who has first rights and priority as the internet is a global tool for commerce.  Your band maybe based in Chicago, but you are selling your music nationwide.
So, before investing money in the name of your band, you should investigate whether anyone else is already using the name, globally. If someone is already using your name, as explained above, they have priority in their territory.  If this is the case it will be easier for you to find a new name if you are just putting together the band.  A good place to start is the performing rights societies (ASCAP/BMI/SESAC). These organizations will do a search of their roosters for conflicting names. The internet can be a good source as well considering how integrated it has become to the music industry.  There are also many resources where they can assist you in doing a trademark search of state and federal trademarks.
After checking the availability of your band’s name and there is no legal ownership of it, you should then take steps to protect that name. As stated above, priority of use in a specific territory is the key to protecting a name. Keep careful records of your public use of the name. Record where and when you played or sold records, and any publicity so as to prove what territory you have used the name in and for how long. As for legal protection, there are a few routes you can take.
You might immediately think of copyrighting your band name.  But your band name is not a written piece of work or a song.  It is a brand name like Pepsi, Oreo or Aerosmith therefore you cannot copyright a band name. The correct legal protection is a trademark. Within trademark law there is a category called servicemarks. A trademark identifies a product while a servicemark identifies a service. Since a band is in the business of providing entertainment services, a servicemark is the proper tool to protect the name of a band.
The amount of protection you want for the band should be determined by where you want be protected.  If you are planning to only do business in your state, then a state trademark is all that you will need.  Considering the global nature of the music business and how easily accessible your music is worldwide, you have opportunities to protect your trademark in each country.  For the United States you would apply for a federal trademark but globally can be a bit trickier as you would have to apply for a trademark in each country you want to do business in. 
When you look at a products name or even some band’s names you will see a "(R)" symbol.  What does it mean? Unlike the copyright symbol, "©" (which anyone can use whether their work is registered with the Copyright Office or not), the trademark symbol, "(R)", can only be used if you have a federally registered trademark. By using the "(R)" symbol, you put everyone on notice that you own the trademark. There is also a "TM" symbol used occasionally. This has no legal definition or significance, but is generally used to claim ownership of an unregistered trademark.
So in conclusion, the first thing any serious band with dreams of having their music heard around the world, check and make sure no one else is currently using your name.  And if no one is, take steps to protect the name.

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