B(r)and On the Run: Trademark Registrations for Recording Artists

Written by Noel French

June 15, 2020

It doesn’t matter if you’re a rapper, a singer-songwriter, or a band. In the modern music industry, success is often as much about identity and persona as it is about talent. And if you want to develop a valuable identity for your music career, you need to understand trademark rights. Unfortunately, trademark registration for a recording artist’s name is complicated. Fortunately, we’re here to help you sort it out.

The first thing you need to understand is that it matters whether the application for your name or band name is for your music or for other things like t-shirts. You can apply for applications in many classes of goods and services, so its possible your application will include both your music and merchandise.

Requirements for Registering Your Name for Sound Recordings

If the application is for your music, you need to make sure you can show that:

1. The name or band name is used on a series of recorded works AND
2. There is sufficient evidence included in the application to show that the name or band name identifies the source of the series of recorded works and not only the name of the recording artist.

How to Show Use on a Series of Recorded Works

The first point above seems straightforward, and usually it is. You just need to show that you’ve used your name or band name on multiple albums. If you’ve only used it one, you might need to wait until your sophomore album before registering a trademark for sound recordings (though you may file an intent to use application while you develop your second record).

Does it count as more than one work if the record is available as both a CD and a download?

No, it doesn’t matter what medium your record is in – if it’s the same work of music, it counts as one work, even if it’s available by download, stream, or physical CD.

How to Show Evidence that the Name or Band Name Identifies the Source of a Series

There are two ways to do this. The first can be tricky because of how the music industry works, and the second can be hard because it involves more effort and evidence.

Showing Control Over Quality

If you maintain control over the quality of your music and use of your name or band name, then that will satisfy the requirement you show evidence that the name identifies the source of your music rather than only identifying the recording artist. If you have creative control, that will probably satisfy the test! All you must do is submit a verified statement that you “publish or produce the goods and control their quality.” However, remember that if you make that statement and it isn’t true, it could create issues for your trademark registration, so if you’re not sure this is a good reason to contact an attorney.

Showing Promotion and Recognition of the Name

If you don’t have creative control over your music so you can’t accurately say you maintain control over its quality and production, you can still show that the name identifies the source of your music by demonstrating promotion and recognition of the name. You do this by submitting evidence such as copies of advertising that promotes the name as a source of your music, third party reviews using the name to refer to you as the source of your records as a body of work, or evidence that the name is used on a website associated with your series of records. It’s not necessarily the case that you will need all of those types of evidence, but having more will be helpful in convincing the examining attorney that you’ve demonstrated that your name or band name satisfies the test.

Requirements for Registering Your Name For Other Goods and Services

Ironically, it’s easier to register your name or band name for goods and services other than sound recordings. The requirements for things like merchandise are just the general rules for trademark registration. There’s no particular hoops you have to jump through to register your trademark for t-shirts! For that reason, it might not be a bad idea to register the mark with any other goods or services with which you are using them. For instance, you might consider a registration for musical performances and hats (assuming you sell hats). Most famous recording artists have multiple registrations – some have dozens.

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