Trade marks: A band needs to protect their reputation

https://www.artslaw.com.au/images/uploads/Photo_by_Eszter_Bir%C3%B3_on_Unsplash.jpg

For any band, reputation is a crucial element. When another band uses a name that is the same or sounds similar to theirs, this can raise some reputational concerns. Arts Law was recently approached by a band that had this exact issue. The band had been well established and their music has been published on Spotify, iTunes and featured on Triple J’s Hottest 100.

Earlier this year, a solo artist appeared with a stage name exactly the same as the band. The band was concerned the two acts could be confused and sought advice from Arts Law to help resolve the issue. A band’s name is its principal marketing tool and any confusion with other artists should be resolved as soon as possible.

The band’s first query was in relation to what steps they could take to prevent the artist using their name. Arts Law lawyer Roxanne Lorenz gave legal and commercial advice about the strategies the band could use to restrain the other artists from using their name. The advice included non-legal strategies the band could take which would be more efficient and cost-effective. In this situation, the band’s name was not a registered trade mark. Roxanne explained the consequence of this and whether this impacted the enforceability of their band name against the other artist.

The band was also advised by Arts Law that the band’s name could be protected under the common law of passing off or under the Australian Consumer Law (Misleading and Deceptive conduct). This would depend on the circumstances. However, Arts Law explained that a band name would not be protected by copyright law. A name or title in most circumstances does not meet the originality requirements of copyright law.

The band’s second query related to registration of their name as a trade mark. Arts Law advised the band on the application process including the prospects of successfully registering their trade mark, potential reasons for rejection and the possible defences the artist could raise in response to a claim of trade mark infringement. The advice allowed the band to consider whether they should register their trade mark in order to protect themselves against future similar situations.

That said, in this instance the band was able to resolve their issue without the need of legal action. This case emphasises the point to be aware of your rights in relation to your band’s name and to protect your reputation by registering your trade mark.