Words by John Miranda, Attorney at Law
John Miranda is a Chicago attorney. He can be reached at JohnMirandaLegal@gmail.com and his legal articles can be found at www.ChicagoSmallBusinessLaw.com. John has written legal articles for Fake Shore Drive in the past. Read more here.
Trademarks originated with medieval sword-making and traditional katana guilds. Each guild used to put its own mark on the swords it manufactured in order to assure buyers of the sword’s maker and quality. Modern trademark law is based on the same principle – trademarks can attach to logos, slogans, names, images, services, and even sounds, and they serve to identify the source of the product. Trademarks protect brand equity. Once you have invested time, money, and sweat into building a name for yourself, some guy shouldn’t be able to profit by printing t-shirts out of his apartment featuring an unauthorized use of your name, likeness, or album cover.
Copyright is the primary body of law associated with the legal protection of music recordings and compositions, but trademarks can also protect sounds to the extent they serve as a distinctive identifier of an artist. For example, NBC’s signature three-tone chime is a protected trademark, since it identifies a very specific brand. The United States Patent and Trademark Office (USPTO) even maintains a page dedicated to “Sound Marks.” In hip-hop, Notorious B.I.G.’s iconic “bay-baaay” hook is probably recognizable enough for soundmark eligibility.
Most importantly, trademarks protect distinctive artist names, which are very rarely protected by copyright. If your artist name is the same as your given name (for example, you are Kanye West..hi Kanye), then you cannot obtain a registered trademark without first establishing your brand in the mind of the consuming public, i.e., becoming relatively famous. The name must take on “secondary meaning” with the public, meaning that the public automatically associates your name with the associated services (music). This can take a very long time and is typically only an option for artists that have achieved some degree of celebrity. If you go under a more unique and creative artist moniker that is more inherently distinctive, it will be a far easier process. It is possible for song and album titles to become eligible for trademark protection, but they must be quite famous.
As opposed to copyrights, which technically arise upon the fixation of an original work in a tangible medium of expression, trademarks only come into being when they are being actively used in commerce. You can reserve a trademark for up to 6 months by registering with the United States Patent and Trademark Office, but you must provide proof at the end of the 6 months that you are now marketing your products or services under the reserved name in order for the trademark to become valid. Trademarks are also industry specific. For example, the trademark to YOLO, as made famous by Drake, is owned by a frozen yogurt business in Florida.
At least as far as the frozen yogurt retail business is concerned. There are many other registered Yolo trademarks found on the USPTO’s database, including cupcake shops and longboard manufacturers. These registrants do not infringe on each other’s Yolo trademarks because they are in separate industries and separate geographical regions. A USPTO search of “Chance the Rapper” shows that the trademark to Chance the Rapper, which is owned by the artist’s LLC, is registered in the trademark “classes” (industrial categories) that include recorded music, music composition services, apparel, websites providing entertainment, and live performance, among others. These are the standard categories in which artist name trademarks are registered. Once your trademark is registered, you can place an R in a circle – ® – next to the trademarked words or images. If the trademark is not yet registered, you can place a ™ next to the trademarked material.
[Click Below For Next Page]