Oh dear… Here you were, Googling your band (no judgement), when you stumbled across a website you aren’t sure if you would have preferred to have seen or not. Some other act has the same name as you. Whether you are amused, livid, or anywhere in between, some serious considerations need to be made, and protective steps to be taken. This world wide web ain’t big enough for the both of you.
Disclaimer: this article is for informational and planning purposes only and does not constitute legal advice. If you are in a difficult situation, please consult an attorney who practices in your legislative territory instead of jumping straight into action based off a blog post and your emotions.
Why Should I Care?
So, you might not be furious with the other act right off the bat. Your thoughts could be leaning towards “how on Earth did two neo-traditional country bands in New Jersey choose their name from the same obscure comic book reference?” or even planning a Battle Of The Bands (only one shall remain)…
Get your mind out of the gutter, this is a serious issue. You might find this funny, but the fans won’t if they drive a long way to a concert, mistaken that you’re performing, or vice versa. The second band to use the name, the “offender,” has the duty to rename themselves. Even if both bands decide it’s fine, when it comes to being offered a record deal or working with a high profile booking agent (or any kind of major industry happenings), they’re going to have a problem with it and may insist that on a name change by the offending band to do the deal, or overlook them due to headache they bring, or just come to the conclusion that they make bad decisions and pass.
Who Had It First?
Well, have you trademarked your stage name? If so, you’re in the right, they’re in the wrong. That’s that (or vice versa). That’s the ideal, clean hands scenario.
If you search up your band name on your country’s trademark database, you can see if the other group is in the process of filing. There’s a period in which their filing can be challenged and if you let that pass, you may lose your common law rights (Common Law is practiced in Canada – excluding Quebec – but international readers should check their respective country’s system).
Where things get complicated is when both are independent bands shoestring budgets and decide that filing a trademark is too costly. Without legal documentation, you’ll have to prove ownership yourself.
Pretty-Please Change Your Name?
If your act has clearly used the name longer (the offenders are a new band, or are rebranding themselves), reach out nicely. If a new band has some common sense in their members, they’ll choose going back to the drawing board before ordering expensive, name-branded merch by the box load.
Prepare some sound, logical details: your use of the band name regionally, such as tour dates, festival slots, etc… If they do not respond kindly, follow up consistently with them to continually state that you have a problem with them using your name. This will help protect your claim.
Seriously, Stop Using Our Name.
Okay, let’s say that they are not playing nice and ignoring you, or responding with less than good manners. Perhaps it’s best to talk to someone who can reason with them. Perhaps they have a manager or their own lawyer, who understands the severity of trademark infringement.
It may be time for you to start looking for legal representation. In the meantime, continue emailing them to leave a paper trail of them consistently refusing acceptance of their use of your name.
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Have A Lawyer Step In.
If you reach this point (and I hope you never do), it’s time to call in a pro. This is some of the recommended documentation to give a lawyer to help support your claim: A history of your use of the name ( public achievements, dates you played in different regions, specifically overlapping regions with the offending band)The band’s contact information, full names, and whatever else you know about them. All previous correspondence regarding the issue.
No doubt about it, this is a sticky situation for anyone to be in. I hope this article gave you some information on why you should care if you have the same band name as someone else, as well as a few defensive steps to take, hoping it doesn’t escalate. Remember that if it does, always consult a lawyer.