Can I use a band's name after they break up?

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Are you a musician? Is your group having issues? Ask Fan Landers! Critic Jessica Hopper has played in and managed bands, toured internationally, booked shows, produced records, and worked as a publicist, and is the author of The Girls' Guide to Rocking, a how-to for teen ladies. She is here to help you stop doing it wrong. Send your problems to her -- confidentiality is assured, unless you want to use your drama as a ticket to internet microfame.

Dear Fan,
My label released two records by a band that has broken up. I just discovered on Facebook some kid who seems to be a singer-songwriter and is performing under the same name. Just as a heads up I thought I would message this kid [REDACTED], who seems to think it's OK because the type of music he plays is different, and he wants to know if I am coming at him "legally." I don't really have much legally vested interest and I'm pretty sure I care more than the former band does at this point, but it would affect my label in some minor way and dilute any sort of name recognition the band built up. Do I have any legal standing in this, or am I cyber-bullying a stubborn kid?
George


George,
You do have a legal standing! You have the right to not have this over-confident young man with a sense of rhythm that runs from abysmal to nonexistent sullying the work you released. The fact that he has 125 Facebook likes and lives half the country away from the broken-up punk band with 445 likes matters nothing, for the same reason that I cannot reasonably expect that it would be okay if I started a Mr. Bungle-style band and called it the Black Keys [shudder].

"Likelihood of confusion" is the legal consideration here. Maybe, in a pre-internet era, being different genres might have applied, but here in internetland 2014 a band is a band is a band. Likelihood of confusion even covers bands with similar sounding names working within the same country. As much as I applaud this guitar-slinging young broseph telling you "It's OK," you are free to tell him "Actually, it's not," and do so in a letter asking him to find another band name. If you would like to be official, find a lawyer friend to draft something, or seek out a small business law clinic in your city and see if they can help you, if you do want to go after this kiddo.

Do you ask him to change the name on principle? Or to stem confusion early just in case he takes this beyond his dorm room, perhaps turns into the Kenny Loggins of the lower Midwest after a summer of woodshedding? You could also kindly suggest to him that it's better to take care of this issue now, rather than once he has a record out or gets a record deal, effectively erasing his brand. You would actually be doing him a favor in that case. The law is not on his side, regardless, so it's your call how much of a hard ass you want to be about it, or if you want to take his advice and "chill."

Best of luck,
Fan

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9 comments
ZachNyhus
ZachNyhus

I was in a shitty garage-punk band in the mid-'90s. We called ourselves "Save Ferris". You have no idea how pissed we were a couple years later when that horrible cover of "Come On Eileen" hit it big all over the radio...

Chris Porto
Chris Porto

Yeah I am going to start a band called the Beatles

Frank
Frank

The question is: Who knows, maybe the kid does have the better (=older) rights ? Why is it that the band with the label should automatically have better rights ? Because they have more likes ? Doesn't matter at all legally.What matters is who used the name first and did business with/under it. I don't know the answer i'm just saying it's not neccessarily as easy as Mrs. Hopper makes it seem to be.

Karen Odegard Dulak
Karen Odegard Dulak

My brother was in a metal band in Mpls. Back in the early 80's called Disturbed. When the other Disturbed came around, he and band mates received all sorts of legal stuff telling them they could not use the name any longer.

sid.gasner
sid.gasner

Are sure your answer is correct? Wouldn't this actually depend upon whether the band name was protected by trademark?

Katy Vernon
Katy Vernon

Interesting. "Likelihood of confusion" has become an issue for me lately. It's frustrating for sure.

Mariel6
Mariel6

@sid.gasner You don't have to register something as a trademark to have it protected, it just makes it easier to enforce. (is my understanding)


Shouldn't this be the LABEL'S war though? I would let someone higher up know, they might have official enough letterhead to get the point across.

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