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Music Business Essentials: Trademark Basics
- 1. Music Business Essentials TRADEMARK BASICS © 2006 musicbizclasses.com
- 2. Trademark Basics Trademarks are a form of Intellectual Property The Lanham Act (title 15 of the United States Code) addresses federal statutes of trademark law Trademarks are used to identify a business in the marketplace © 2006 musicbizclasses.com
- 3. Trademark Basics Any mark that is distinctive and plays a role of indicating commercial source can be trademarked Trademarks can include distinctive letters, numbers, words, sounds, smells, colors, promotional characters Short phrases, logos and distinctive words can be used as trademarks Trade dress= the distinctive packaging, design or services associated with a product can also be trademarked © 2006 musicbizclasses.com
- 4. Examples of Trademarks The NBC chime The sound of a Harley Davidson exhaust Nike s Nike’s swoosh logo McDonald’s phrase: I’m lovin’ it The letter grouping: IBM The fragrance: Chanel no. 5 Coca C l B ttl Shape C Cola Bottle Sh The red tag on Levi Strauss jeans The name: “Barbie” Doll © 2006 musicbizclasses.com
- 5. What Cannot Be Trademarked Generic Words Names of living persons who have not given their consent The U.S. flagg Other federal and local governmental insignias g Words or symbols that disparage living or deceased persons, institutions, beliefs or national symbols Marks that are judged immoral, deceptive or scandalous © 2006 musicbizclasses.com
- 6. Trademark vs. Servicemark A trademark in connection with goods. A service mark i k in i connection with ti ith services. © 2006 musicbizclasses.com
- 7. Trademark Basics Trademark can be protected on BOTH the State (Common Law) and Federal level Trademark is AUTOMATIC upon first use in public commerce BUT, it is best to register it, to ensure legal protection © 2006 musicbizclasses.com
- 8. Trademark Limitations Trademark protection can be geographically limited- trademark does not protect your mark in every region, t t t ki i unless you file on the federal level Trademark does not protect you in every commercial sector Trademark generally sector--Trademark only extends to your business category or musical genre g © 2006 musicbizclasses.com
- 9. Trademark and Music A Company name can be trademarked A Band name can be trademarked For new bands without a track record of p public commercial success, it is much , easier to get a Servicemark Song titles are not g g generally p y protected under any category of IP There are some instances when a song title can be trademarked- BUT distinctiveness and substantial commercial success must be b proven © 2006 musicbizclasses.com
- 10. Band/Artist Name Trademarks RESEARCH a band/artist name before using it! Research both the State Trademark Database (Secretary of State website for your state) AND the Federal Trademark Databases- United States Patent and Trademark Office (www.uspto.gov) If you plan to pursue commerce, first register your band/artist name with your Secretary of State y y (www.azsos.gov- “business filings”) and obtain a Trade Name or Fictitious Business name or DBA (Doing Business As)= $10 00 $10.00 © 2006 musicbizclasses.com
- 11. Band/Artist Name Trademarks Decide if you plan to register at only the state level or the federal level for trademark protection USPTO Resources: Free online search of the Patent and Trademark Office via Trademark Electronic Search System (TESS) O Online Application: pp http://www.uspto.gov/teas/index.html You can also hire a professional search firm, i.e. Thomson & Thomson or an Attorney who specializes in Trademark searches and applications © 2006 musicbizclasses.com
- 12. Federal Trademark Registration Registering a mark with the USPTO= $375 Benefits= Federal Protection; and helps in Website domain disputes Application for a Trademark= TM or SM symbol Approved and certified Trademark= ® Intent to Use= within 6 months Use © 2006 musicbizclasses.com
- 13. Federal Trademark Term Length Trademarks can last indefinitely Trademark holders must file renewal forms Abandonment of Trademark= If you fail to protect the trademark from y p infringement If you do not use the Trademark continuously for trade purposes © 2006 musicbizclasses.com
- 14. Trademark Infringement Likelihood of Confusion rule – How distinctive is the trademark? – Competitors in the same geographic region? – Different audiences for different musical styles? Dilution- a derivative mark that degrades an existing, well-known mark g g False Endorsement- unauthorized use of a public persona to imply product endorsement © 2006 musicbizclasses.com
- 15. Right of Publicity The right of publicity evolved out of the right of privacy in the U.S g y Right of Publicity= the right to charge for g y g g (or bar entirely) the commercial exploitation of name, likeness, voice or personality Generally applies to celebrities Governed by State Law-varies by state © 2006 musicbizclasses.com
- 16. Exceptions to Infringement Dilutive Dil i use of a mark i permitted: f k is i d in comparative advertising; in news reporting and commentary; when use of the mark is “noncommercial.” “Noncommercial use” refers to uses constitutionally protected under the First Amendment, such as parody, satire, and editorial expression that are not part of a commercial transaction transaction. © 2006 musicbizclasses.com
- 17. Key Take-Aways Trademark is AUTOMATIC comes with first public commercial use p Trademark may be indefinite, BUT must be used regularly and owner must file regular documents with the USPTO Band names, sounds, unique words- can be trademarked Servicemarks are easier for new b d t get bands to t © 2006 musicbizclasses.com
- 18. For Educational Use Only This slide presentation is part of the Music Business Essentials series series. Contact info@musicbizclasses.com info@musicbizclasses com for more information © 2006 musicbizclasses.com