Legal Question in Intellectual Property in Tennessee
Music: same name, slightly different product
I have a small indie record label. I recently learned that there is a music publisher registered with ASCAP with the exact same name as my label. Neither of us have trademarked the name. But, he appears to have had it longer. Since I'm selling cds to consumers and the other guy is selling songs to artists, we aren't exactly competing with each other. Although, both are forms of entertainment.
I can't find any evidence of him using this name (no website, no ads, no products) other than the ASCAP listing and a writing credit on a country album. Is it possible for me to trademark the name and continue to use it since he hasn't already done so? Obviously, if he trademarks it first, I'm out of luck. But, am I already out of luck since he's used the name longer, albeit in a slightly different business?
2 Answers from Attorneys
Re: Music: same name, slightly different product
Trademark registration is based on category. If you seek registration in the recorded music category you likely will be successful. Of course, I would need more details and do the research on how both marks have been used. That way we could tailor your application to avoid being confusingly similar to the other mark.
Let me know if you want to proceed with applying for the mark.
Re: Music: same name, slightly different product
In the U.S., the first to USE the trademark in commerce has the rights. Obtaining a registration first is usually not the criteria.
You need to consult a trademark lawyer to analyze the facts in detail.
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