Rockin’ the trademark

Are you a solo musical performer or a member of a band? Do you want nationwide trademark protection for your name or your band's name? As your music grows in popularity, so does your need to ensure that consumers identify you as the source of your unique sound. One way to do that is by registering your name as a trademark with the United States Patent and Trademark Office (USPTO). Federal trademark registration provides nationwide benefits that you can use to enforce your trademark rights against infringers.

Watch our Rockin' the Trademark video for an overview of the process, or select from the following topics:

• How do I file my trademark application?
• Who should be identified as the trademark owner in the application?
• What happens if the band lineup changes or someone changes their name?
• What are goods and services?
• What is a filing basis?
• What are specimens?
• What is a "statement of use"?
• What is a “likelihood of confusion”?
• Can I register a title of a single creative work? 
• Can I register my name or a stage name?
• Do I need consent to register someone else's name or stage name?
• Who can respond to Office actions and authorize Examiner’s Amendments? 
• Once I receive a registration certificate, does the registration last forever?
• How can I check the status of, or view documents from, my application or registration?
• Does the USPTO protect my trademark rights?
• What are all these trademark solicitations?

For general information about trademarks and the benefits of federal trademark registration, be sure to watch the Basic Facts About Trademarks videos and download the Trademark Basics Registration Toolkit.

For information about the trademark application process, be sure to watch the USPTO’s news broadcast-style video series called the Trademark Information Network (TMIN).

If you have a suggestion for another topic that relates to bands and performers, email TMFeedback@uspto.gov.

How do I file my application? 

File your application online using the Trademark Electronic Application System (TEAS). There is one application form with two filing options for initial Principal Register application. The TEAS Nuts and Bolts videos and our page about the initial application form can help you decide which option is right for you and explain how to fill out your application.

• The TEAS Plus filing option has more requirements up-front when you submit your initial application. As a result, you pay a lower fee per class of goods or services.
• The TEAS Standard filing option has fewer requirements up-front. However, you must eventually meet all the application requirement and pay a higher fee per class of goods or services.

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Who should be identified as the trademark owner in the application?

The TEAS initial application requires you to identify the "owner of the mark." This refers to the person or business that owns the trademark or has a bona fide intent-to-use the trademark in commerce. If multiple people or businesses own the trademark or are entitled to use the trademark, each person or business must be identified as a joint owner in the application. Sometimes a soloist or band will set up a juristic entity, such as a corporation, limited liability company, or partnership, to serve as the owner of the soloist's or band's name, others do not. You are not required to form a business entity in order to apply for a federal trademark registration.

Here are common ownership scenarios:

• You're a solo musical performer and want to register your personal or stage name. If you have not set up a separate juristic entity (such as a corporation or limited liability company) to manage your business or own your trademark, file your application in your name as an individual applicant using your personal name as the applicant. You must specify your national citizenship (e.g., USA, Canada, or Mexico).
• You're in a musical group with more than one member and want to register your brand name. If you have not set up a separate juristic entity, such as a partnership, corporation, or limited liability company, to manage your business or own your trademark, your application must identify the owners as joint individual applicants, with each member of the band listed as an individual applicant. You must also specify each applicant's national citizenship (e.g., USA, Canada, or Mexico).
• You're in a musical group with more than one member and the band has formed a partnership to manage the business or to own the trademark rights. If the partnership has been organized under a particular business name, the application must identify the business name as the owner of the trademark. In addition, you must list the state (for United States partnerships) or country (for foreign partnerships) under whose laws the partnership is organized must be provided. And for a partnership organized in the United States, the application must list all general partners’ names, legal entity types, and national citizenship (for individuals), or state or country of organization (for businesses).
• If the partnership has not been organized under a business name, list the names of the general partners as the partnership name. In addition, you must list the state (for United States partnerships) or country (for foreign partnerships) under whose laws the partnership is organized and, for partnerships organized in the United States, include the name, legal entity type, and national citizenship (for individuals), or state or country of organization (for businesses) for all general partners.
• You're in a musical group with more than one member and the band has set up a corporation or limited liability company (LLC) to manage the business or own the trademark rights. The application must identify the corporate or LLC name as the owner of the trademark. You may also include your assumed business name, if you have one. The application also must specify your corporation’s state of incorporation or LLC’s state of organization (for U.S. corporations or LLCs) or country of incorporation (for foreign corporations or LLCs).

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What happens if the band lineup changes or someone changes their name?

During the application process or after registration trademark owners change their name for various reasons. For example, the band may decide to evolve their business model from joint owners to a corporation or LLC, or one or more original members of the band may leave and be replaced by new members. When ownership of the trademark changes, you must submit proper ownership documentation to the USPTO Assignment Recordation Branch, along with the recordation fee.

For more information about transferring ownership or changing the owner name, read about trademark assignments, look through our transferring ownership/assignments FAQs, and watch the assignments and ownership changes TMIN video.

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What are goods and services?

A trademark isn’t a trademark unless it is used to indicate the source of your goods and services. Otherwise, it’s just a cool name, slogan, or design. Goods are physical products that bear your trademark. Services are activities that you perform for others. When you apply to register your trademark, you’ll need to specify the goods and services that you use with your trademark.

Here are examples of goods and services often identified by musical performers:

• Goods featuring musical recordings
  • Musical sound recordings, in International Class 009
  • Compact discs and DVDs featuring music, in International Class 009
  • Digital media, namely, downloadable audio files featuring music, in International Class 009
  • Digital media, namely, and downloadable audio and video recordings featuring music, in International Class 009
  • Downloadable musical sound recordings, in International Class 009
  • Musical video recordings, in International Class 009
  • Video recordings featuring music, in International Class 009
  • Downloadable video recordings featuring music, in International Class 009
• Common ancillary products for musical bands
  • Posters, in International Class 016
  • Stickers, in International Class 016
  • T-shirts, in International Class 025
  • Hats, in International Class 025
• Entertainment services for musical bands
  • Entertainment services, in the nature of live musical performances, in International Class 041
  • Entertainment, namely, live music concerts, in International Class 041
  • Entertainment services, namely, personal appearances by a musical group, in International Class 041
  • Entertainment services, namely, providing non-downloadable prerecorded music, information in the field of music, and commentary and articles about music, all on-line via a global computer network, in International Class 041
  • Entertainment services, namely, providing a website featuring non-downloadable videos of musical performances by a musical group, in International Class 041

For examples of acceptable identifications, please consult the Acceptable Identification of Goods and Services Manual (ID Manual). For more information, review the Searching the Trademark ID Manual and watch the Good and Services TMIN video.

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What is a filing basis?

To federally register your trademark, you must be using your trademark, or intend to, in interstate commerce. Your filing basis is your indication to the USPTO of whether you are currently using your mark in commerce or whether you have a bona fide intent to do so in the future. Either basis is acceptable, but it’s important to understand the distinction between these filing bases (and other options), and the implications of selecting one, before starting the application process. For more information, watch the filing basis TMIN video 

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What is an "amendment to allege use" or a "statement of use"?

If you submit your application based on a bona fide intent-to-use your trademark in commerce, you will be required to claim use of your mark by submitting either an “amendment to allege use” or a “statement of use.” You must include dates of first use of your trademark, a specimen showing trademark use for each class of goods or services, and a processing fee for each class.

For more information about an intent-to-use application and amending to claim use in commerce, see the intent-to-use webpage and the statement of use TMIN video.

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What are specimens?

A specimen is an example of your trademark as used in commerce. It is real-life evidence of how you are actually using your trademark in the marketplace with the goods or services in your application. It's what consumers see when they are considering whether to purchase the goods or services you provide in connection with your trademark. 

For more information, please watch the specimen TMIN video.

Examples of specimens for goods (such as CDs, downloadable music files, and t-shirts):

• A photograph of the product showing the mark SPARKLEHORSE and DOEMAN directly on the compact discs 

• Product packaging showing the mark MARK SCIBILIA and THE LIVELIES

• Product labels showing the mark HEART BREAK GANG for “clothing, namely, shirts, t-shirts

Note: Proper trademark usage is shown here on the t-shirt label, not on the front of the t-shirt. Use of the mark on the front of the t-shirt may be considered “ornamental.” For more information about ornamentation, please see the Specimens for Goods – Ornamentation section below.

• A webpage display of the goods, showing the CD with the mark THE KIELBASA KINGS for “compact discs featuring music” appearing above the CD, the price appearing below the CD, and a shopping cart button/link appearing on the page. 

• For downloadable music, a webpage showing the mark KREWELLA featuring a "buy" link that alerts the consumer that the identified goods are available for download.

• For downloadable music files, a webpage showing the mark THE VOODOO FIX featuring an "add to cart" link and text about the goods that states it is “a digital download,” which alerts the consumer that the identified goods are available for download.

Specimens for goods – Ornamentation

There are certain circumstances where we could refuse to register your trademark because the use shown on your specimen shows your trademark as merely a decorative or ornamental feature of the goods rather than as an indicator of the source of the goods bearing the trademark. 

For example, if your goods are “shirts,” then a specimen showing your trademark as a small, neat, and discrete word or design feature over a chest pocket or breast portion of shirt may create the commercial impression of a trademark. However, a larger rendition of the same matter emblazoned across the entire front of a shirt or hat may be perceived merely as a decorative or ornamental feature of the goods.
 

• In this example, the mark shown below is for shirts. The trademark is rather small and shown on the upper pocket area of the shirt, and, as such, is likely to be viewed by consumers as indicating the source of the shirts bearing the mark.

As noted above in the product labels and tags discussion in the Specimens section, use of the mark on the label of a shirt would also be considered non-ornamental use. 

• In the image below, the trademark JACOB'S LADDER for "shirts" is displayed prominently across the face of the shirt, which consumers are likely to view such use as merely decorative and indicating the wearer’s support for the band, musical festival, or album referenced in the mark. Consumers would not view such use as indicating the source of goods.

Specimens for goods – Ornamentation refusals and responding with secondary source evidence

When we review your application, you could receive an official letter about your application that includes a refusal to register your trademark because the specimen shows only ornamental use for the goods, and not use as a trademark to indicate the source of the goods. However, it is possible to overcome an ornamental refusal, or potential refusal. You can do this by providing evidence that your trademark would in fact be recognized as an indicator of source through your use of the same trademark with goods and/or services other than those being refused as ornamental. This is known as “secondary source” evidence.

To show secondary source, you may provide evidence of one or more of the following: 

1. A U.S. registration number for your Principal Register registration of the same trademark for different goods and/or services based on use in commerce under Section 1of the Trademark Act. For example, , if your current application is for the trademark “LOWDOWN,” for “t-shirts,” you could show secondary source by providing the registration number for your Principal Register registration for the trademark “LOWDOWN” for services identified as “entertainment, namely, live performances by a musical band,” registered pursuant to Section 1 of the Trademark Act.

2. A U.S. registration number for the same trademark on the Principal Register for different goods and/or services based on a foreign registration under Section 44(e) or Section 66(a) of the Trademark Act for which an affidavit or declaration of use in commerce under Section 8 or Section 71 has been accepted. For example, if your current application is for the trademark “LOWDOWN,” for “t-shirts,” you could show secondary source by providing the registration number for your Principal Register registration for the trademark “LOWDOWN” for services identified as “entertainment, namely, live performances by a musical band,” registered pursuant to Section 44(e) or Section 66(a) of the Trademark Act for which an affidavit or declaration of use in commerce under Section 8 or Section 71 has been accepted.

3. Non-ornamental use of the trademark in commerce on different goods and/or services. For example, if your current application is for the trademark “LOWDOWN,” for “t-shirts,” you could show secondary source by providing an advertising flyer showing that you are also using the trademark “LOWDOWN” to advertise live performances by a musical band. OR

4. A pending use-based trademark application for the same trademark, which includes a specimen showing the trademark used in a non-ornamental manner, for different goods and/or services. For example, if your current application is for the trademark “LOWDOWN,” for “t-shirts,” you could show secondary source by providing the serial number for your other pending application before the USPTO for the trademark “LOWDOWN” for “entertainment, namely, live performances by a musical band”.

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Can I register a title of a single creative work?

No, the title of a single creative work, such as the title of an album or song, is not registrable unless it has been used on a series of creative works. Therefore, although the name of a band can be registered, the name of a non-series single album or song cannot. Single creative works include works in which the content does not change, regardless of the format. So, a song or album remains a single creative work regardless of whether the song or album is available to consumers via multiple formats such as CDs, downloadable music files, and non-downloadable streaming services. However, a creative work is not a single creative work if it is part of a series of works. For example, if you release two albums under the same name, with the first album labeled “Volume 1” and the second album titled “Volume 2”, then this is a series of works. Live performances by musical bands are presumed to change with each presentation and, therefore, are not single creative works.

For more information about titles of a single work, read the title of a single work page. 

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Can I register my name or a stage name?

It depends. You can register your name or stage name (or pseudonym, nickname, portrait, or signature) as a trademark or service mark, but you will need to provide two types of evidence that your name or stage name is:

1. Used on a series of creative works, and 
2. Used as source-identifying function.

Evidence that the name is used on a series of recorded works

As noted above, evidence that the same collection of recordings is available in different media (i.e., the same album is available on CD, phonograph record, and as a downloadable music file) does not establish that the trademark is used on at least two different works. Your evidence must show use on two separate albums. For example, see the use shown below of the trademark "BON JOVI" on four CD covers featuring different material.

Evidence that the trademark is a source identifier

This includes evidence of the performer’s control over the name and quality of his or her works in the series, such as:

• A verified statement indicating that “the applicant publishes or produces the goods and controls their quality”, or 
• You could provide copies of license agreements or other contractual evidence showing that you control the quality of the recordings and use of the name, or 
• Evidence of promotion and recognition of the name as a source indicator for the series of recordings, which includes: 

  • Copies of advertising that promote the individual or group name as the source of the series of recordings. For example, an advertisement for the CDs featuring the wording “Now available at your local record store, the new album from Joey Bananas, Choose Your Own Destiny, along with his prior hit album, This Way to Nowhere”, or

  • Copies of third-party reviews showing the reviewer’s use of the individual or group name to refer to a series of works. For example, a review in a newspaper with the text “the new album from Joey Bananas, Choose Your Own Destiny, is a strong follow-up to his last album, This Way to Nowhere”, or

  • Evidence showing the name used on a website associated with the series of works. For example, a screen-shot from a music retailer’s website showing the name of the artist “JOEY BANANAS” at the top of the webpage above images of different “JOEY BANANAS” albums, along with a brief synopsis describing the different musical styles employed in the depicted albums.

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Do I need consent to register someone else's name or stage name?

Yes. If your trademark includes the name, portrait, and/or signature of a particular living person. You must provide the following:

1. A statement that the name, portrait, and/or signature identifies a living individual whose consent is of record, and
2. A written consent personally signed by the individual named or shown in the trademark.

The reason we require written consent from a named or shown living person in a trademark prior to registration is to protect an individual's rights of privacy and publicity to control the commercial use of his or her identity. For more information, read about inquiry regarding name/portrait/signature of particular living individual in mark and how to comply with this requirement.

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