Return to main Advice page

Legal Eagle

Copyright

Q: Protecting the band name

I have just formed a new seven-piece band, which seems to be doing well but I want to safeguard the name of the band if I lose the members. How can I do so?

A: As to protection of the name from the individual band members themselves, what you need is a joint venture or partnership agreement, in which all members of the band will join and which will regulate the terms of the partnership, including the exclusive right to use the name of the band. Such an agreement should address the rights and remedies of the partnership against any individual member who leaves the band for any reason. It would clearly be desirable to arrange for a departing member to agree to make no use of the name - otherwise, perhaps, than in his personal biography or CV.

There are a great many variations on the theme and it is desirable to have any such agreement drawn up by a lawyer acting on the instructions of all the members of the band, or alternatively on the instructions of one or more 'prime movers' (if any), with the others being separately represented. Of course, there is no absolute need to deal with other partnership matters in the same agreement as that which relates to the name of the band. While you are negotiating more complex partnership terms, you could have a short, simple agreement drawn up, dealing just with the use of the name, in which each member of the band would undertake to make no unauthorised use of it once he ceased to be a member.

However, you would need to address what you want to happen to the name if a majority of the band leaves at the same time - ie whether or not the name goes with the majority in those circumstances.

So far as outsiders are concerned, it is desirable to register the name of the band as a trademark in every territory in which it operates or is likely to operate, although this is not essential. It is now possible for one registration to cover all territories in the European Community.

Even without trademark registration, the band might still have a claim in 'passing off' against any other band or group with a similar name, operating in the same locality or territory in circumstances where it is likely to be confused with your band - but only if you could show that you were the first to operate under that name.

Before you start using the name it is desirable to make enquiries in the industry in order to try and satisfy yourself that there is no other band already operating with the same or a similar name and to have a trademark search made to see whether there is already a trademark registered in the same or a similar name and, if so, in what classifications of goods and services.

The more unusual your name and the less use it makes of commonplace words or phraseology, the less likely it is to be confused either now or in the future with another band, unless the latter deliberately sets out to copy your name, in which case individuality will make copying more easy to establish.

First published July 22nd 2004