The Importance of Band Names

Band names are protected by trademark law, and with a finite number of words in the English language, and an ever-growing list of popular bands, it is almost impossible to come up with an entirely original band name without being completely obscure or stepping on someone else's toes.

Take for example the case of the band “Captain America.” In the early 1990's the Scottish band was poised to become an instant success after being asked to tour with Nirvana and subsequently being offered a record deal by Atlantic. At the same time the band was sent a cease and desist notice by Marvel Comics for infringing on the comic book hero of the same name. They were forced to change their name to “Eugenius” which resulted in massive consumer confusion and a drastic drop in the bands popularity. Basically, Captain America lost their fan base overnight.

Artists typically don't consider the originality of their band name when they are simply trying to make ends meet and get their music out to the public. In particular artists often fail to consider that being forced to sacrifice their established band name somewhere down the road can lead to costly litigation, re-packaging of CD's, punitive damages, loss of consumer recognition and as a worst case scenario, obscurity in the eyes of the consumer.

It is also important to keep in mind that success in the corporate arena does not necessarily lead to success in the litigation arena. There are several instances of small and relatively unknown bands forcing superstars to sacrifice their band names. Examples include Dinosaur Jr., Green Jelly, and Al Fatz. One of the main factors in any court's analysis will be who was using the name first.

If you are in a band, or representing a band, it is important to remember that a little bit of trademark due diligence can go a long way. Just because your band is playing in smoky juke joints today, doesn't mean that your band won't be a national success within the next few years. Start by looking around to see if other bands are using your name, and determine if they have been using your name before your band came into existence. If they have been, select a new band name and contact an attorney to file the necessary paperwork with the Trademark Office. These few steps can save you a lot of time and money if your band ever takes off.

Louis Kroeck practices civil litigation at Anstandig, McDyer, and Yurcon in downtown Pittsburgh. He is a member of the Allegheny County Bar Association’s Arts and Law committee and received his B.S. in Information Science and Technology from The Pennsylvania State University and his J.D. with a concentration in Technology and Law from Case Western Reserve University. Louis writes for Demand Studios and contributes local legal journals and other publications.