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.

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.

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.

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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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How Close Can a Logo Be & Not Be a Copyright Infringement?

References

Related articles

What Is a Dead Trademark?

A trademark is a symbol, design, word, phrase or combination of these elements a business uses to identify its products to the public. While a trademark is active, its owner can take action in court against unauthorized use of the mark. A dead trademark, however, is no longer protected against unauthorized use. A mark can die for various reasons, including lack of use and misuse by an assignee.

Legality of a Parody of a Trade Name

A trademark is a brand name that identifies the source of particular goods. Whether or not a trade name is registered with the US Patent and Trademark Office, a business has a trademark in its trade name because its name identifies the company as the source for a particular set of goods. Parodies are usually protected from trademark lawsuits because they are critical representations of or jokes about a trade name. Since a parody is obviously not the source of a certain product or service, it usually isn't infringing trademark rights.

What Is a Trademark's Duration?

A trademark identifies a particular manufacturer of goods, using a particular phrase, design or symbol. Designs, words or symbols used to identify a provider of services are called service marks, although there is no practical legal difference between trademarks and service marks. The mark ensures consumers can easily identify a particular company as the source of a product, and encourages brand loyalty. It also distinguishes and sets apart a particular company’s goods and services from others. This encourages companies to maintain consistent quality standards in the goods and services they produce. In some cases, trademark protection extends beyond words or symbols, encompassing "trade dress." For example, if a fitness drink company packaged its drinks in unique, triangle-shaped bottles, that shape would be entitled to trademark protection.

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