Canadian Musician - May / June 2018 - Page 62

BUSINESS Lindsay Bailey is an entertainment lawyer with Taylor Oballa Murray Leyland LLP and is jointly Vancouver and Austin-based. She has a diverse practice, working with clients across the music, new media, fashion, visual arts, and film & TV industries and enjoys transactional and related work with her clients where these areas converge. Lindsay is a registered trademark agent in Canada and is registered to appear before the USPTO for her clients. www.tomllawyers.com. Melissa Arseniuk is currently completing her third and final year at the University of Ottawa Faculty of Law, where her studies and legal research focus on technology, privacy, and entertainment law. By Prior Lindsay to law school, Melissa & was Melissa a journalist Arseniuk whose work Bailey appeared in Rolling Stone, the Washington Post, People, and the National Post, among others. Band Branding & Trademark Law 101 A s your music career takes off, it is almost inevitable that another performer or band will try to harness your success and steal your brand. It’s important to keep an eye out for copycats, but what do you do if you find out someone is ripping you off? Trademark You don’t need to register your band name in order to receive trademark protection, but registering a trademark has its benefits, so it’s never a bad idea. It’s important to know that registration is done by country or “territory,” so if you’re active in both Canada and the U.S., you should register with the federal trademark office in both countries to ensure your name is adequately protected. If you have a worldwide tour next year or your online community is growing with international fans, you may want to explore wider trademark registration, either in key countries abroad or a worldwide trademark registration. Infringement Registered or unregistered, the first thing a prudent performer should do when faced with an alleged evil twin is figure out if the offend- ing behavior is in fact trademark or copyright infringement. So, what is trademark and copyright infringe- ment, you ask? Trademark law deals with names, logos, and slogans, while copyright law deals with creative works – compositions, performanc- es, and recordings. A band’s name involves trade- mark law, while a song engages copyright law. This article focuses on trademark law, so we will leave copyright law for another day, but suf- fice it to say that while copyright law protects your band’s music, trademark law protects your band’s brand – specifically your band name and any logo or icons that you may be using to promote your band, and how you use these trademarks online, on streaming services, with 62 • C A N A D I A N M U S I C I A N your promotional materials, and in your merch. So, what would you do if you come across a band using the same (or a very similar) name? If your answer was “I have no idea” – or, worse yet, “I’d call them out on Twitter!” – step away from the “tweet” button and keep reading. If another act is performing under the same name as you (or under a name that could easily be confused for yours), the best thing to do is get in touch with an entertainment lawyer ASAP. Before you march onto the offending act’s tour bus yelling “I’ll see you in court,” it is important to work with your legal team to figure out who used the name first. It’s possible that the other act has been using the name for years and was toiling away in ob- scurity long before you wrote your first song or picked up a guitar, in which case you might be the one infringing on their trademark. If that’s so, it is in your best interest to not bring the inadver- tent trademark infringement to their attention, and instead work with your legal and manage- ment teams to develop a strategy around chang- ing your name, stat. Establishing Yourself With this in mind, artists should conduct an extensive name and trademark search before deciding on a band name. Exploring all of the digital streaming sites and social media networks is the best start, and once you think that you’ve confirmed that no one else out there is using this ingenious band name, you may have just landed on something. But just because you find someone else is using the name you have your heart set on doesn’t mean you can’t use it, too. 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