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Old 28-10-2017, 02:19 PM   #1
Plague
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Naming and Copyright

Hi!

I started with a music project 5 years ago. I checked the internet and nobody was using that specific name. Now 5 years later, a cosmetic company uses that name.

Does it matter? Should I fear consequences when I release songs by that name? Or should I choose a new name, because I haven't released most of my music yet?

Thank you!

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Old 28-10-2017, 03:10 PM   #2
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Re: Naming and Copyright

Ah, legal advice on forums, always dodgy! For what it's worth here's my reply.............. but defo research this yourself and if worried take actual real legal advice.

My understanding is that an artist's name would fall under Trademark law, not copyright.

Trademarks can be registered in one or many "Use Classes". Cosmetics is clearly in a different use class to music.

Trademarks can be local to one country or be registered in many.

You don't have to register a name as a trademark to have the right to use the name. It's still your "trademark" just not registered formally as one.

My understanding of trademarks is whoever uses the name first in public gains the right to the name, whether it is registered as a trademark or not. Deciding if you want to register your name is a separate subject, most small artists won't - too expensive. In any case the same name can be used by different parties under different use classes. My understanding is that use of the name publicly first is the key claim in any use class.

I think you do have to actively use your name to have the right to keep it too. If you have anything online at all out there under your artist name I'd imagine you'll be fine on both this and also proving you were using the name first. Souncloud, facebook page etc.

To legally stop someone else with the same name I think brand confusion or reputation damage would normally have to be proven. So if you had the same band name as a clothing company it probably wouldn't be a problem unless you had a well selling line of T-Shirts...........

Some names can't be trademarked at all, too long and boring to go into that here, easy to google though.

So for this to cause you trouble I think you would have to be a super popular act, the cosmetics company would have to be registered a trademark in your country, have registered it under 'music', have registered it before you used the name AND be able to prove your music was causing their brand damage............

As always I suspect it's only worth worrying at all about if you are selling LOADS of music.

All of this is just my understanding of course and not legal advice!
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Old 28-10-2017, 04:31 PM   #3
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Re: Naming and Copyright

As far as I know, if the trademark is registered by somebody else, then they can legally request you stop using it ( take you to court)..and the law is usually on the side of the person or persons who registered it. It doesn't matter if you were using it first..if it's registered, then it's the property of that person and can't be used without their permission, which is referred to as "infringement."..that's why trademarks are registered in the first place, as they usually are tied to a brand, product or individual and used as part of their business identity.

Flexagon is both right and wrong..

Right in that if you are the first one to use something as your trademark, but it is unregistered, then you can claim it as your own trademark, and request others not to use it..even take them to court. You need to use the letters "TM" after the mark, so as to let others know you are claiming the trademark as your own and are stating your rights of ownership of the same.

Wrong, however, in that if somebody else actually registers it legally, then it becomes their property and they can sue you on the grounds of infringement.

There's loads of sites out there that go into great detail on this topic..but here's one that explains it clear enough. The main point about your case is you never used it publicly..or if you did, then it wasn't to any great extent. Meanwhile, this other business entity has gone and registered it, meaning they now have legal protection of that trademark..and it would be hard for you to prove it was yours in the first place, as you never registered it to begin with or used the letters "TM" after it.

It sucks, but you might want to think about changing it a little, so it sounds the same, but looks and is spelt differently. Or if it's just a image logo-type thing, then alter it enough so that it doesn't look like an obvious ripoff of the registered one. At least, that way, you could demonstrate to a court that you took active steps to not use the register trademark, which should count for something if it ever came to a court case.

Another thing is where the name is registered as a trademark and in which jurisdiction that registration is legally applicable. Basically, in the U.S, if you register a trademark, then it is legally covered through the nation. On the other hand, if you DON'T register your trademark and just use the letters "TM", then you are likely to only have a legal claim within your own state and not elsewhere.

Likewise, the same applies to its use globally..meaning if you just register it in your own country, then others could still use it in other countries, in which your own laws don't apply. You can register it worldwide, but I'm pretty sure that's an expensive procedure.

Regardless, Flexagon is right..you should seek legal advice..third-hand info, such as what we've told you here is all well and good, but you really need to speak to a legal professional about things like this if you're serious about it..after all, it's your rights and money we're talking about here..and you should seek the best advice you can when it comes to both.

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Old 28-10-2017, 07:20 PM   #4
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Re: Naming and Copyright

I have very little knowledge in this field but I had an issue with an event I was running for a very short time and the name we chose. Another group claimed they had the trademark or copyright (I can't remember) and simply asked us to stop using it. I think this would be the first step in any contest. If you refuse then they may look to take you to court.

With regards to having a similar sounding name that is spelt different.

I read a story (Online so may not be 100% true) that said companies are now trying to trademark the "phonetic" of their name. The story given was of Microsoft who took a guy in America called "Mike Roe" to court who set up a software company called mikeroesoft.com or similar. They claimed people may get confused. I think they settled out of court after he got a load of public backing.

Anyway...I would be mindful of both.
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Old 28-10-2017, 07:57 PM   #5
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Re: Naming and Copyright

Quote:
Originally Posted by Duck Key View Post
I have very little knowledge in this field but I had an issue with an event I was running for a very short time and the name we chose. Another group claimed they had the trademark or copyright (I can't remember) and simply asked us to stop using it. I think this would be the first step in any contest. If you refuse then they may look to take you to court.

With regards to having a similar sounding name that is spelt different.

I read a story (Online so may not be 100% true) that said companies are now trying to trademark the "phonetic" of their name. The story given was of Microsoft who took a guy in America called "Mike Roe" to court who set up a software company called mikeroesoft.com or similar. They claimed people may get confused. I think they settled out of court after he got a load of public backing.

Anyway...I would be mindful of both.

Good point there, DK..about the phonetic aspect of it all. I didn't hear about that, but it wouldn't surprise me at all. Still, I can see why Microsoft would have chased this guy down, mainly due to him running a software company..direct conflict there and an obvious "riding of coattails", if you know what I mean.

I'm by no means an expert on any of this..just read up on it in the past, due to my own personal interest, but I honestly do think most companies or business entities wouldn't bother if the other party were involved in something totally different to what they themselves were involved in..as is the case here with Plague and the aforementioned cosmetic company. But, yeah, valid point all the same..and well worth looking into further is Plague intended still going ahead with the original choice.

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Old 28-10-2017, 08:27 PM   #6
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Re: Naming and Copyright

Wow, thank you for your elaborate answers!

I will check these links, but:

Does or should every band or project actually register their name as trademark?
Would it be an option to ask that company for using that name?
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Old 28-10-2017, 08:46 PM   #7
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Re: Naming and Copyright

Quote:
Originally Posted by Plague View Post
Wow, thank you for your elaborate answers!

I will check these links, but:

Does or should every band or project actually register their name as trademark?
Would it be an option to ask that company for using that name?
Hey, more than happy to be able to pass on the info.

As for every band or project registering their name as a trademark...in an ideal world, yeah..I guess..but in reality, I don' think it's really worth it, unless you kinda know you're going to be making serious money. In that case, it's a logical business move, as it's one of steps you need to take in order to protect your brand and have a legal foothold against other people / companies ripping off your image..say, selling t-shirts with your name on a gigs. That's a bit of a simplistic example, but you get what I mean.

As for asking the company about using their name..you could try, but I'm pretty sure you'll get a polite reply from their legal guy saying no. But then again, you've got nothing to loose by asking? That is, as long as you're ready to stop using the name if they ask you, once you've made them aware that you're using it or want to use it.

Personally, as long as it's just the name..and they have a different logo and are selling completely different stuff to you, then I don't really think it should even be a problem for you..but still go and see some legal person and get their take on it..just to be sure.

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Old 28-10-2017, 08:54 PM   #8
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Re: Naming and Copyright

If you ask and bring yourself to their attention I'd imagine you'll pretty much make them say "No, please don't", whether they have a valid claim over you or otherwise.

Don't forget by my understanding it's the name AND the area of business (Use Class) it's being used in that are important.

There are multiple entities in the UK that all have valid Trademarks for "Smiths" for instance.

Plus some names can't even be trademarked at all. They are considered to be too generic to be able to have protection.

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