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Your Band is Called What?! So is mine!

23/06/2014 | ACUMEN BUSINESS LAW

Recently, a band came to see me for the first time about a management agreement. They walked into the meeting with their infectious up-beat and optimistic attitude. And why not? They are making good music, playing more and more gigs and are beginning to be recognised in the street (usually by screaming young females). We discussed a number of issues, including protecting the band's name and they informed me that they hadn't registered their band name as a trade mark. Gulp. 

This is a common oversight made by bands, because, unlike typical business set-ups, bands are usually born out of a group of friends enjoying a hobby which sometimes develops into a career, as opposed to a career derived from weekly strategy meetings. As such, some important matters are overlooked and not revisited until its too late. 

There are a number of issues that arise from failure to protect a band name early, but as this is a blog and not an Intellectual Property legal textbook, so I shall focus on the two main ones. 

The first is entitlement to the name. If you fail to conduct the necessary preliminary searches for the name you intend to use and use the name without protecting it, you may realise that actually, that band name is owned by someone else! And as such you are unable to continue to use it, even where you have built up substantial reputation. Whilst this sounds ludicrous it does happen, for example: Snow Patrol were originally called Polar Bears but were forced to change their name due to a conflict with an American band (their debut album was subsequently named, songs for Polar bears). Blink - had to change their name to Blink182 and, Westside had to become Westlife all because they failed to undertake the key searches! So, if you fail to research the band name your using, and don't take steps to protect it could mean that a re-brand is required, damaging the reputation of the band and exposing the band to a potential claim for trade mark infringement. 

The second issue is ownership. If your band name hasn't been registered as a trade mark and this issue hasn't been addressed, who owns the rights to the band name? Is it the founding member? The band members jointly? The lead singer? The agent or the record label? is the name owned in equal shares? Is there an express agreement outlining the ownership? 

Do excuse the sporadic questioning, but when ownership is unclear, many questions have to be answered and argued in order to ascertain and prove that the rights to the name belong to anyone in particular and in what proportion. Early registration avoids this slow and painful to-ing and fro-ing, and bickering about a conversation once had down the pub in which it was decided that X will would own everything (after a suspect amount of beers).Let's just look at the Sugababes as an example. They recently had a very public dispute about the rightful owner of the band name, which at the time of the dispute, none of the original members of the group were part of the Sugababes. Mutya Buena, one of the original founders has recently claimed victory on her social media page that she has won the rights to the name. Well. Ermm, not quite that victorious, as the mark SUGABABES has now been successfully registered under Ms. Buena's name in relation to Stationary, paper gift wrap and gift wrapping ribbons and not typically the usual classes a band would like to register their name against. Disputes about ownership can be incredibly costly and damaging to a band's reputation and it is important to address the ownership question early on in the band's life. 

Concluding advice? Well, it's quite simple actually. Address these issues, have the ownership discussion, do the necessary preliminary searches and get protection early.

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