Legal Question in Entertainment Law in New York

Band Name

My guitarist came up with a name for the band. It turns out that the name is being used by an artist on mp3.com, but that is the only place it is being used. There is no other history of this person using the name. This artist does not perform with this name, as there are no gigs posted anywhere. I am in NYC and the person is in Delaware. We would like to know if we can use this name as we have some legitimate record label interest in us and don't want to tour and then have some issues.

Thanks for your help.


Asked on 3/27/02, 10:08 pm

3 Answers from Attorneys

R. Freeth Silverman Sclar Shin & Byrne

Re: Band Name

Generally, I would agree with Mr. Feldman, but there are additional considerations. In trandemarks first use is important, but so is continued use. Further, if they've really only used it in one instance on MP3, and not filed a trademark registration, then I believe you're not totally in bad shape. But, you need to consult an attorney, so you should not base your final decision on what any of us say on the internet. If you are in need of counsel I can be contacted at 212-779-8600.

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Answered on 3/28/02, 6:12 pm
Timothy Violette Law Office of Timothy P. Violette

Re: Band Name

By all means give me a call and I'll tell you about this kind of stuff. Your possible label would take care of trademark issues like this. 718-448-8372 after 3 PM.

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Answered on 3/27/02, 10:25 pm
Ken Feldman Feldman Law Group

Re: Band Name

Strictly speaking, the use on MP3 is trademark use, and if that artist continues, you could have a losing conflict up the road. Now you have some possible arguments (that it wasn't used for performing, it was in another area, etc. ) but I think they are losing arguments against the first user in essentially the same field.

Of course, this artist may not continue to use the name, or may lose interest, etc. But if this artist continues and you work using the same name and a conflict arises, they will most likely be able to stop your use of the name up the road. So I would try to chose another one rather than chance it. Feel free to contct me for more info.

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Answered on 3/28/02, 12:02 am


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