MUC 109 LEC 7 Trademark

Music Business Essentials

TRADEMARK BASICS

© 2006 musicbizclasses.com

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

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

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

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

Trademark vs. Servicemark
A trademark in connection
with goods.

A service mark
i k in
i connection with
ti ith
services.


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


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


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

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


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


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


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


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

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

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.

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

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


MUC 109 LEC 7 Trademark

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