Want to know how to trademark your music name? This is what I’m going to show you how to do today. Look below for a step by step guide to trademarking your name for musicians, as well as a look at the difference between trademarks and copyrights.
This guide was written by myself, Richard Jefferson, Esq., owner of LawyersRock.com. I am an Entertainment lawyer. That said, please note that you shouldn’t take the below as professional or legal advice, I am just providing you with general information on the procedure. Even if you decide to use an attorney to file your trademark application, knowing how the process works should be very helpful.
The Difference Between Trademarks and Copyrights
In the music industry, you frequently hear about the importance of protecting the copyrights in your music, but what about protecting your name? Copyrights protect creative, original works such as sound recordings and musical compositions, but Trademarks protect things like names, logos, and slogans. With the music business making a paradigm shift from a focus on selling records to branding artists, the value of copyrights have been decreasing and trademarks have become the money makers.
If an artist (or the label) wants to engage in branding deals, such as becoming the spokesperson for a product or service, then the artist must own the trademark, or the legal right in his or her performing name. For example, Katy Perry® is a spokesperson for COVERGIRL. The deal that she did with them required her to formally grant COVERGIRL the right to use her name in connection with its makeup line.
So how do you obtain ownership in a trademark? In the U.S., you basically need to secure a trademark registration from the United States Patent and Trademark Office (USPTO). This post is going to explain the three steps to this process. There are nuances to each step depending on your specific situation, but if you plan to do-it-yourself, this post will be very helpful.
Note: you can also see how to copyright your music here.
How To Trademark A Music Name, The Step By Step Process
Here’s how to trademark a music artist name.
Step 1 – Perform A Search To Make Sure Your Mark Is Available
Your performing name, company name, or logo needs to be unique in order to qualify for trademark protection. This means that you are not going to be able to call yourself Drake, Jay-Z, or Taylor Swift. You can’t even put a slight spin on it like Drizzy, or Jay-P, or Tyler Swifty. It’s not going to fly.
Trademark law calls these types of spins as “confusingly similar”. This is not allowed because it would confuse the public when they go to buy an album. Can you imagine how you would feel if you went to iTunes to get the new Drake album and you ended up mistakenly downloading an album from an unknown rapper named Drizzy? You wouldn’t be too happy. That is the gist of why trademark law exists.
So, the first step is to see what trademarks already exist so that you can choose something unique. A simple Internet search will give you some insight, but a more helpful way to know if to search the USPTO database. This will reveal any registrations and pending applications.
To do this, start by going to the USPTO Website.
From the homepage, click on Trademarks and then on the first link under Trademarks named Searching Trademarks.
For name searches, choose the first link – Trademark Electronic Search System (TESS). FYI, below that is a link that allows you to search designs if you are doing a search for logos.
You will be presented with a few different options. I normally use the third option, which is called Word and/or Design Mark Search (Free Form).
Once you are on the search page, type in the trademark you are looking for and follow the codes, which are explained on the page.
For example, suppose you want to call yourself Lady Gaga and you have never heard of any recording artist that uses that name (an obvious extreme example but this would apply to any performer name that you want to use). You would follow the steps above, type in LADY GAGA and use Boolean search techniques to narrow your search (i.e., quotes, AND, OR), and up pops two listings for LADY GAGA (see below).
Note: recorded music is in International Class 009 so I entered 009[IC] in the search, and I only want to see active trademarks so I added the word LIVE.
Bottom line, there is a conflict so you better use another name!
Step 2. Choose The Proper Description
Trademarks are categorized into 45 international classes, which represent various products and services. Since this post is for musicians, the primary applicable international classes are 009 (for physical and downloadable recorded music…CDs, and downloads) and 041 (for live and public performances…concerts and streaming over the internet).
The next step is to determine what description accurately describes the product or service that you offer. The USPTO website has a database that you can search to find the best pre-defined description.
You can search the site, but to speed things up I have included the link below:
You are now at the page called:
U.S. Acceptable Identification of Goods and Services Manual
This is a database of descriptions that can be easily searched. Put the good or service that your trademark represents and you will find a number of descriptions that you can sift through.
So, why do we do this step? You want to make sure that you put in an accurate description into your application so that no one can challenge it.
It is much easier to figure our your description before you start your online application because it will time you out of your session if you take too long completing the process.
Try it! If you type in “Music” you will see 137 different descriptions.
These are pre-approved descriptions from the USPTO. You are allowed to create specific descriptions, but those are scrutinized a little bit more by trademark examiners, which is something you want to avoid if you can help it. If one of the pre-approved descriptions does not work you can usually at least find something here that you can tailor a bit to match your needs.
Ok, so we are now ready to file the actual trademark application. Here’s how.
Step 3 – Online Filing
Now that you have done your due diligence, and you know the proper international class and description, you are ready to file your trademark application!
As we did before, go to the USPTO website.
This time you are going to go to the Trademarks dropdown menu, and select Filing Online.
There is plenty of information on this page to read. To do a new filing, click on the link that says Initial Application Form.
There are a few options. Again, make sure you read so that you choose the application that best fits your situation. I try to do a TEAS Plus application whenever possible because it is the quickest and cheapest. To do that one, click on the link that says File a TEAS Plus Application.
As I mentioned before, make sure that you have all of the information that you need for your application beforehand, including:
- Ownership Information – who is going to own the trademark?
- Mark Information, including the files that you are actually going to submit with your application.
- Evidence of Use – if you are already using your mark (as opposed to planning to use it) you will need evidence that shows your use.
- Class Description (Step 2 of this post)
- International Class (Step 2 of this post)
- Correspondence Information. This is information that identifies who the Examining Attorney will speak with if there is an issue with your application.
Ok, back to the application screen.
Click on Continue at the bottom of the screen to enter the online application.
This takes you to the next step. Scroll to the bottom of the screen where it asks, “Is an attorney filing this application?” on your behalf. Choose Yes or No and then click Continue.
The next screen covers ownership information. Fill that out appropriately. Sometimes you may want to own it individually; sometimes your company should own the trademark; and sometimes there are multiple owners.
After you have filled out the ownership information, click Continue to go to the next screen.
This is where you will enter your actual Trademark. This is where you put your performing name! If you have a logo this is where you attach it to your application.
For example, if your performing name is “MOJO”, I leave the default settings and simply type in: MOJO.
If you have a design mark (logo) then you actually need to select the file here and upload it so that it attaches to your application.
Once you are done, click Continue.
The next screen is where you will find your Goods and Services and International Class. Enter the information from Step 2 of this post on this page.
After clicking on Goods and Services you go to a search screen. From here you are going to search the goods and services database. Type in part of your description so that it will pop up on screen. For example, if your trademark is for “downloadable recorded music” type that in.
When you have found the description(s) that you want, click on Insert Checked Entries.
Next, go to the bottom of the page and either select Intent-To-Use, (meaning you haven’t used it yet) or In-Commerce (meaning you already are using it).
The last section is for the correspondence information and, again, this is information for the Examining Attorney, the person who will review and process your application. If the Examining Attorney has questions they will contact the person listed in this section.
The very last page gives you an opportunity to go back and look over your application before you submit it. I would encourage at least looking over everything one more time before submitting just in case you missed something. You can make only minor changes to your application after you submit it. If you make a major mistake you may have to file an entirely new application and pay another filing fee.
That’s it. You are done! If you found this guide useful and want more such advice, you can check out my site LawyersRock.com.
Important reminder: It’s impossible for me to cover every scenario so please do not take anything here as professional or legal advice. I am just providing you with general information on the procedure. Even if you decide to use an attorney to file your trademark application, knowing how the process works should be very helpful.
Written by Richard Jefferson, Esq., owner of LawyersRock.com.