This Is Us: Establishing Your Performing Name

So you've found your band members, you've got the instruments, you've come up with some great songs you're ready to show the world – but what's your name? More importantly, how are you going to make sure it stays your name not just for now, but for your future career?

The name you use to identify your band is vital and valuable because it develops a reputation becoming an asset that sells tickets and merchandise. Think of your own favourite artists or bands and how the mere presence of their name on an email or poster grabs your attention. Failing to properly protect your name may lead you to having to change it down the track, losing the reputation you have already built up and forcing you to create a new identity from scratch.

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Choosing Your Name

Other searches should be conducted with the Australian Securities and Investments Commission website, and also through the Business Entry Point. This will check for registered business names and any other entities such as companies and trusts that may be using that name. A search to check if the name has been registered as a trade mark should also be done through IP Australia. Many of these searches can be done for free. Traditional media such as magazines and street press, particularly those aimed at the music and band scene, should not be overlooked either.

If you find out that someone is already using your proposed name, the next thing you should do is see what that other person does. This is because if the other person is using the name in an entirely different context you may still be able to use the name for yourself as a musician (eg., 'Queen' was used as a name both by the highly successful British rock band and a British women's magazine). Keep in mind however that with social networking sites if someone has already registered an account using your desired name you may not be able to register that exact name even if the other person works in a different artform or industry, or is based in another country entirely.

Protecting Your Name

Once you have your name and feel confident about using it, the next thing to do is to go about protecting it. In Australia there are a number of legal systems for registering and protecting names used in business, some of which are mandatory.

Trade marks

The best way to protect a name is by registering it as a trade mark. This can be done both to protect the name as a word and as a logo if you design one, however does cost money.

Becoming the registered owner of a trade mark means you have a monopoly over the use of that mark and can prevent others from using it. This does, not, however, mean that the same name or mark can't be used by someone else in a completely different class of goods or services. A good example of this is the word 'apple' which is registered as a trade mark not just by Apple for computer hardware and software, but also by various drink companies for fruit juice.

Passing off

Registering a trade mark has many benefits but the downside for many bands, particularly those just starting out, is the cost. However, just because you can't afford to register your name doesn't mean your band name can't be protected. Under a common law action known as 'passing off', a name that has been in use and developed a reputation is given protection. This is not necessarily the person who first thought of or used the name, what is more important is who first established a sufficient reputation. What is 'sufficient' is difficult to define and depends on the facts of each case, however it means that it is possible for someone who thought up a name for their band in 2006 but never did more than a handful of gigs at the local pub to lose the right to use the name in favour of a band that started in 2008 but aggressively promoted and marketed themselves to perform more frequently at venues with a higher profile.

This means it is advisable for young musicians and bands to keep records of any posters, flyers, articles, interviews and similar material, as all of these can be used to help prove that you have built up a reputation in your name.

Business names

If you operate a business under a name other than your own it is mandatory to register that name as a business name in your State or Territory's Department of Fair Trading or Department of Consumer Affairs. This is so that people are able to find out who is actually running the business from behind the name.

The cost of registering a business name varies depending on the State or Territory, and registration must be renewed annually. It is important to realise that although registration of a business name helps establish a reputation or the connection between a name and business, it does not actually give you exclusive rights to use that name. These rights are given only to registered trade marks.

Please note that the Australian Government is currently developing a national registration system for business names (as opposed to the current State and Territory based systems) that is expected to commence in 2011. More information on this project can be found at the Department of Innovation, Industry, Science and Research website.

Domain names and social networking sites

It is increasingly common practice for musicians to promote themselves online. The most visible way to do this is by registering a personalised domain name where you can host your own website. This gives the public a portal to your band over which you have full control: you can design your own look, publish your latest news, show off samples of your music, and more.

Registration of a domain name is on a first come, first served basis. To register a domain name in Australia you must go through a domain name registrar. A list of accredited registrars may be found through the Australian Domain Name Administrator. It is worth remembering that domain names are not actually owned by registrants, but rather licensed from the registrar and will need to be periodically renewed. Costs for registering a domain name vary depending on the type of domain chosen and the registration term.

Social media and networking sites have become widespread as a way for people to communicate and connect with the public and are used by musicians to provide easily accessible information about events and activities. The most popular sites are places such as Facebook and MySpace, and there are many others offering different types of services from microblogging (Twitter) and video-sharing (YouTube). Musicians and bands may use several of these at the same time as many sites allow interoperability so that for example, a video uploaded to YouTube can be immediately shared and published on Facebook. Accounts on social networking sites are free to register, with some allowing for personalised addresses on a first come, first served basis.

Seek advice

If you do get involved in a dispute over use or a name, you should seek legal advice. As you can see, there are many different ways to establish and promote your performing name, all existing in different legal systems. As such, any action to take to recover or retain full use of your name will depend on the context in which the name is being used.

Jo is a solicitor at Arts Law.