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Band name Trademark question

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Foreshadow

Junior Member
What is the name of your state (only U.S. law)?
Hi~
We are a band located in Petaluma, California. We have been the band Foreshadow since 1998, as a local band, and now that we are finally getting bigger and ready to tour the United States, we need to Trademark our name; since we have been confronted by other bands using the same name. We are needing a full trademark for services and goods, since we will be also selling cd's and t-shirts, etc. When doing a Trademark search, we found that a year ago a wine/spirits company Trademarked this name. We have tried to do our homework to find out if we can also trademark the name, since it's for a completly different use, but cannot find the answer and cant get a lawyer to call us back. We have a back-up band name, just in case that does not show any trademarks, but do not want to do this unless we must. We have noticed that other names have multiple trademarks, so this is why we pose the question. Can we legally do this?
Thank you SO much!!!
 


FlyingRon

Senior Member
You acquire a trademark by using the name in commerce. There's nothing you can do to squeeze out others using the same name in commerce for the same product.

If there are already multiple bands using the name, you might want to consider using a different one.
 

Foreshadow

Junior Member
Im not trying to squeeze anyone out and the other bands are local bands and not really doing anything here in the U.S. The reason I was wondering if we could also obtain a Trademark with the same name as the wine comapny is because it is NOT the same service. I had found this on another trademark website, which is why i am questioning it:

When you trademark a name, you do not gain exclusive rights to use that name in all circumstances. You only gain the right to use that name in connection with the business to which it is attached.

I am the bands manager and stayed in a Holiday Inn Express last weekend...lol
 

quincy

Senior Member
If you have been performing as a band under the name Foreshadow, that is already your trademark. A trademark is an identifier of a business, product or service, and trademark rights arise through the use of this trademark in commerce.

Registration of your mark is not needed to enforce rights to the name, however if others have been operating under the same name, your rights to the name can be limited and/or challenged. This challenge will be more likely if consumers can confuse your business use of the name with another's business use of the name, and if you are operating under a name that competes in the same business, with products or services that are the same or similar.

If you want to, you can register your trademark with your state and/or put the country on notice that the name Foreshadow is already in use as your band's trademark by registering the name with the US Patent and Trademark Office. Registration, again, is not necessary, but it affords you some additional protections should you wish to pursue an infringer.
 
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Foreshadow

Junior Member
Yes, I have read much to this; which is why we want to trademark the name as a band for services and goods (for cd's and merchandise)...since the current Trademark with our name is for a winery, which is so NOT in the same line of services and goods, are we allowed to trademark the name still? This is just so confusing...i have reached out to another attorney, so hoepfully they will get back to me. i just dont see how 1 person can trademark a name and no one else can trademark it if its not for the same service. i just dont want legal issues and be forced to change the name if this winery can in fact be the sole owner.
Thanks again!!!

I also own a photography biz and will trademark the name immediately, since its still available :)
 

quincy

Senior Member
Reviewing all of the specific facts with an attorney in your area is certainly the wisest route to take, before you invest a lot of time, energy and money into your band's merchandising plans under the name Foreshadow.

There are several companies that share the same name and they can operate without conflict because consumers are not confused by the shared trademarked name - they operate in different geographic areas or they do not share the same customer base or their products and services are unrelated. Trademark law centers on consumer confusion - if there is no confusion over the differing companies with the same name, there is unlikely to be trademark infringement (with exceptions for famous or distinct names, which can often exert control over the use of the name even absent consumer confusion).

Obviously, you will have a far easier time of it if the name of your band is unique to only you. A unique name eliminates the risk of infringing on an existing mark. But, if your band is already known as Foreshadow, I can see why you want to retain the name.

Again, it is best to have an attorney in your area review all of the facts of your situation. You will want to investigate with this attorney those bands and/or companies with the same or similar names and decide whether the legal risk of sharing this Foreshadow name with others is small enough to make it worthwhile to move ahead with your plans as Foreshadow or seek another name.

Good luck.
 

Foreshadow

Junior Member
Thanks again!!! I appreciate your responses :)
Lets hope this last attempt for an attorney will call me back. I'd say this about the 5th one ive reached out too in my area...ugh!
Thanks again!!
C~
 

Foreshadow

Junior Member
i have one more question;
If we are also able to trademark the name Foreshadow as a band, would be able to put a halt to these other local/little bands throughout the state from using the name? The one thing we hate, even though we were the 1st to use this name in the line of bands, (we are also first to register the name on bandnames.com) is that if someone searches on the web, these other bands come up as well; including on social websites; like Facebook and Myspace...This is one reason we have considered going with another name, but it just doesnt seem fair...you can pick any name out of the air and someone is using it for one thing or another...
 

justalayman

Senior Member
i have one more question;
If we are also able to trademark the name Foreshadow as a band, would be able to put a halt to these other local/little bands throughout the state from using the name? The one thing we hate, even though we were the 1st to use this name in the line of bands, (we are also first to register the name on bandnames.com) is that if someone searches on the web, these other bands come up as well; including on social websites; like Facebook and Myspace...This is one reason we have considered going with another name, but it just doesnt seem fair...you can pick any name out of the air and someone is using it for one thing or another...
what happened to this:

Im not trying to squeeze anyone out and the other bands are local bands and not really doing anything here in the U.S.
 

Foreshadow

Junior Member
No, i am not much educated which is why i came here to put my questions out there for educated and mature comments...your comment is ridiculous and immature, but nothing surprises me these days.

I was referring to other people with the same name that are trademarked; as in not trying to push them out. In the thread, it states that just by using the name, its considered a trademark...we have proof we have been using this name since 1998...the wine company trademarked it in 2010...so i thought we were talking about that; not trying to push them out...hey, they got to it first...im just trying to see if we can also trademark it as a band, not in the same market as a winery. If the wine company and myself are trying to do things legally and responsibly, why am i a moron for not wanting another band to use our name? im trying to be responsible for my band and for the protection of our name by doing everything i can to educate myself. I appreciate the guy who took the time to give me his comments on the subject and we are still debating on whether or not its worth the fight to keep the name or go with our back up name...but i never meant to come off as a moron . lol
 

Foreshadow

Junior Member
Uneducated moran? Lol...sorry, thats just funny to me...someone who spells moran calling me uneducated...funny to me! who's the moron??

I think I have received the answers to my questions...Thank you Quincy! You are very helpful and I appreciate it!!
 

justalayman

Senior Member
Uneducated moran? Lol...sorry, thats just funny to me...someone who spells moran calling me uneducated...funny to me! who's the moron??

I think I have received the answers to my questions...Thank you Quincy! You are very helpful and I appreciate it!!
and yet you appear to not be able to read the sentence that preceded that statement. Maybe it does fit you.
 
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quincy

Senior Member
Foreshadow, the fact that you were the first to use the name Foreshadow as your band name would make you the presumptive trademark owner, as long as no other band has registered the name first - if they have, then they become the presumptive trademark owner.

A trademark search, which it appears you have done to some extent, should include not only those trademarks that are registered, either through the state registries or through the federal registry, but also those trademarks that are in use that are not registered. Many will go with a trademark search firm to do a thorough search, as this can be time consuming and difficult for any one individual to do on their own.

That said, it is certainly possible that you can prevent other bands from using the name Foreshadow, this especially the case when your band becomes nationally known and popular. But all of this will depend on the specific facts of your use of the name and the others who currently share the use of the name.

I agree that it does not always seem fair that a name you pick for your band, your product, your service or your company, and that you have developed over the years, may be chosen by another for their own use. That is one reason why it can be wise to register a name once in use, and also why it can be wise to choose a completely unique, perhaps invented, name that no one else would think to use (ie, Kodak, Xerox, Microsoft, the Beatles). These names become immediately attached to a particular company and recognizable as that company's trademark.

Again, if your band has already developed a following under the name Foreshadow, you may want to keep the name and look into registering it as your band name and protecting it from use by others in the same competing market. If you want to avoid the headaches that may come from operating under the same name as someone else, however, you can start afresh with a new name. What is the best option for you will be a decision that must be made by you and your bandmates.

Good luck.
 
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