A trademark is a word, name, symbol or device, or combination of them, used by an artist in commerce to identify its merchandise (CDs T-Shirts, Caps etc.) and services and to distinguish them from others. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same merchandise or from selling the same merchandise or services under a clearly different mark.
A service mark is a trademark that is used in connection with services. For example an artist can obtain a service mark in its name to be used in connection
with its live performances (entertainment services) and can also obtain trademarks in its name in connection with the sale of its CDs, t-shirts, posters etc
A business can obtain trademark rights in the geographic area of use simply by using the mark in the ordinary course of trade or in connection with the sale of
Merchandise or services. However, in order to obtain national trademark rights, which serve as evidence of ownership of the mark and enable the owner to sue for infringement in federal court, the owner must first apply to register the mark with
the specific country ‘s regulator and the applicant must pay a separate filing fee for each class
of merchandise and services for which the applicant wishes to use the mark. For example, if an artist wants to obtain a service mark in its name for live performances and a trademark in its name for CD sales the artist only has to file
a single application but would be required to pay two separate fees. Once a trademark is registered by the Country ‘s regulatory , the owner is entitled to use the mark forever provided that the owner continues to use the mark, satisfies the renewal
requirements and pays the appropriate renewal fees to the country ‘s regulatory.
Use of the ™ or SM Symbols:
Use of the symbols “TM” or “SM” (for trademark and service mark, respectively)
usually indicate that a party is claiming “common law” rights in the mark. These symbols are often used before country’s registration is obtained Proper Use of the mark
Registration Symbol ®:
The registration symbol may only be used once the mark has been registered by the Country ‘s regulator. While an application is pending, the ® symbol cannot
be used until a federal registration has been obtained.
Trademarking Your Brand’s Name:
Before deciding on a particular name, it is important to determine whether anyone else is already using that name. An artist ’s rights in the name depends on a few key factors:
(1) whether the artist used the name first;
(2) the geographic
area (city, state, region, etc) where the band uses the name; and
(3) whether the Artist actually performs under the name. If the artist used the name first it may
be able to stop other acts from using the same or a similar name. However, unless the artist has obtained a regulatory trademark registration giving an
exclusive right to use the name throughout the country , the artist would only have the rights to use the name exclusively in the areas where it was the first to use the name. For example, if a local band performed live or sold its CDs only in Zimbabwe , it could not prevent an artist in South Africa from using the same
It is important to research first before choosing a name.
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