Should Artists Trademark?

By Anna Assad

A trademark is a symbol, design, phrase, word or combination of them used by a person or business to identity and distinguish its good and services. A trademark allows an artist to protect his name or works from use by other people without his consent, but he can't trademark a mark that is already being used by someone else.

A trademark is a symbol, design, phrase, word or combination of them used by a person or business to identity and distinguish its good and services. A trademark allows an artist to protect his name or works from use by other people without his consent, but he can't trademark a mark that is already being used by someone else.

Registered Trademark

A registered trademark is a mark registered with the U.S. Patent and Trademark Office. The artist must file a registration application with the office. After evaluating the application and the mark, the office may allow the artist to register the mark. Registration allows the artist to sue any person or business using the mark without permission throughout the United States.

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Unregistered Trademark

If an artist uses a unique mark publicly with the "TM" symbol, he creates an unregistered trademark. The use of the symbol tells the public the artist is claiming a trademark. However, an unregistered trademark isn't necessarily enforceable throughout the U.S.; instead, the artist's protection may cover only the geographic area where he's using the mark.

Musician

Musicians can trademark their artist name and logo. A musician who builds a fan base under a name that's not trademarked may face difficulty later. For example, a band works for years in a region under a specific name and has thousands of followers. Once the band gets a record deal, the members find they can't use their name because another artist has already trademarked that name. Even if the name is the birth name of one of the band members, another party may have trademarked it previously, preventing the band from using the name commercially. Now the band members have to alter the band name name and spread the word to fans about the difference while trying to create their first major album. Additionally, the musician who owns the trademark could sue the band for trademark infringement. Had the band members tried to trademark the name early on in their career, they would have found the name was already in use and adjusted accordingly.

Visual Artist

A visual artist, such as a painter or cartoonist, can register his name as a trademark. This prevents other artists from labeling their work with his name. An artist also could create an unregistered trademark through the public display of his artwork and use of his name to promote himself as an artist. In order to register a trademark or create and enforce an unregistered trademark, the mark must be distinct. A generic mark or mark being used by another artist isn't eligible for protection.

Trademark Validation

If an artist or musician has been using a name that's already trademarked, he may still have the right to use it commercially. He may challenge the validity of the other artist's trademark registration if the trademark's owner isn't using the mark commercially.

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Do You Have to Trademark Paintings?

References

Related articles

Can the Owner of a Registered Trademark Be Sued for Infringement?

Trademark law is derived from common law that was intended to prohibit companies from competing in the market using unfair and unethical business practices. Trademark law prevents the unauthorized use of a mark in commerce that might cause confusion among consumers as to the true source of goods and services. It also prevents competitors from diluting the reputation and "good will" the product or service has gained with consumers. A business can sue another business for trademark infringement, even if the trademark is registered, if the business bringing suit can prove an earlier date of "first use" of the mark and that it has suffered some sort of damages as a result of the infringement.

Logo & Trademark Rules in the US

The U.S. Patent and Trademark Office defines a trademark as "a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others." A logo is a distinctive graphic design element that may be included in a trademark. Trademarks are governed by both state and federal law.

When Is a Trademark Copied?

Several factors are considered in determining whether a trademark has been copied, such as use, intention and effect. A trademark protects businesses and consumers by identifying the source of a particular brand or product. Think of the Apple logo – when you see an apple with a bite out of it and a single leaf, you automatically associate the design with Apple’s brand. Trademark infringement occurs when a similar name or design causes confusion among consumers.

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