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Similar Stage Name Usage (In Different Countries)

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mits5k1

Junior Member
#1
Hello. I am in California, and received a message yesterday from the UK (if Facebook is to be believed). The sender effectively asked me to stop using the stage name under which I record music with the vague threat of legal action.

I've changed the names slightly, but I record music under the faux-band name "Tommy Atomic and the Fallouts." The band name itself is a bit odd, because I position it as a full band of people, but those people are all fictitious characters. So, in the credits for the music, it lists a number of characters names, and the primary name listed there is "Tommy Atomic." However, Tommy Atomic is not a real person; I am the only person "in" the band, and I clarify on the band's page that all the music is actually written and performed by "[my real name]". I know this is odd, but it has a purpose within the context of the band.

The important takeaway is that the band name is "Tommy Atomic and the Fallouts," "Tommy Atomic" is listed as the leader of the band, and elsewhere in the credits it clarifies that all music is actually written and performed by "[my real name]". Additionally, I've not registered any trademarks associated with my band or the stage name.

Yesterday I received a message from a guy on Facebook named "Tom W. Atomic" who claimed his fans have been asking if my project is a new project of his. He suggested he'd been using the "Tommy Atomic" stage name since the 90s, and asked if we could resolve this in "good faith". I don't know what "good faith" means to him, and I've not responded yet. It took a long time to find him, as simply google searching "Tommy Atomic" returns almost exclusively my project and then a bit about some OTHER musician with a similar stage name, yet nothing about this particular guy from whom I received the message. Eventually, I found his band, a fairly inactive punk band that's been around since at least 2001 called "The Something-or-others". In the credits to music posted by The Something-or-others, he is credited as "Tommy Wolfgang Atomic". I cannot find a single place where he records under "Tommy Atomic"; it's always under "Tommy Wolfgang Atomic". And again, I'm in the United States and he's in the UK.

So, do I actually need to care about this guy's threat? I'm happy to help clarify with his fans that the project is unaffiliated with Tommy Wolfgang Atomic and The Something-or-others, but the band names are completely different, the stage names are somewhat (but ultimately) different, and we're operating on different continents.

Thank you in advance for anybody who has any thoughts!
 
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quincy

Senior Member
#2
Hello. I am in California, and received a message yesterday from the UK (if Facebook is to be believed). The sender effectively asked me to stop using the stage name under which I record music with the vague threat of legal action.

I've changed the names slightly, but I record music under the faux-band name "Tommy Atomic and the Fallouts." The band name itself is a bit odd, because I position it as a full band of people, but those people are all fictitious characters. So, in the credits for the music, it lists a number of characters names, and the primary name listed there is "Tommy Atomic." However, Tommy Atomic is not a real person; I am the only person "in" the band, and I clarify on the band's page that all the music is actually written and performed by "[my real name]". I know this is odd, but it has a purpose within the context of the band.

The important takeaway is that the band name is "Tommy Atomic and the Fallouts," "Tommy Atomic" is listed as the leader of the band, and elsewhere in the credits it clarifies that all music is actually written and performed by "[my real name]". Additionally, I've not registered any trademarks associated with my band or the stage name.

Yesterday I received a message from a guy on Facebook named "Tom W. Atomic" who claimed his fans have been asking if my project is a new project of his. He suggested he'd been using the "Tommy Atomic" stagename since the 90s, and asked if we could resolve this in "good faith". I don't know what "good faith" means to him, and I've not responded yet. It took a long time to find him, as simply google searching "Tommy Atomic" returns almost exclusively my project, a bit about somebody else with a similar stage name, yet nothing about this particular guy. Eventually, I found his band, a fairly inactive punk band that's been around since at least 2001 called "The Something-or-others". In the credits to music posted by The Something-or-others, he is credited as "Tommy Wolfgang Atomic". I cannot find a single place where he records under "Tommy Atomic"; it's always under "Tommy Wolfgang Atomic". And again, I'm in the United States and he's in the UK.

So, do I actually need to care about this guy's threat? I'm happy to help clarify with his fans that the project is unaffiliated with Tommy Wolfgang Atomic and The Something-or-others, but the band names are completely different, the stage names are somewhat (but ultimately) different, and we're operating on different continents.

Thank you in advance for anybody who has any thoughts!
If the similar names lead to, or are likely to lead to, consumer confusion, a trademark infringement suit can result.

Apparently there is already some evidence of consumer confusion.

If the other artist has his name registered as a trademark in the UK, was using his name before you used yours in the US, and/or markets his works in the US, you can be sued and potentially lose the suit.

I would take his threat seriously and see an IP attorney in your area to determine better where you stand legally.
 

mits5k1

Junior Member
#3
If the similar names lead to, or are likely to lead to, consumer confusion, a trademark infringement suit can result.

Apparently there is already some evidence of consumer confusion.

If the other artist has his name registered as a trademark in the UK, was using his name before you used yours in the US, and/or markets his works in the US, you can be sued and potentially lose the suit.

I would take his threat seriously and see an IP attorney in your area to determine better where you stand legally.
And if he has no trademark in the UK? A UK trademark search returned no results either for Tommy Atomic or his specific usage, Tommy Wolfgang Atomic.
 
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quincy

Senior Member
#4
And if he has no trademark in the UK?
In the US, it is the first to use a trademark in commerce who is the presumed owner of the mark. Registration of the mark is not necessary. In other countries, registration of a trademark makes the registrant the presumed owner.

You have what appears to be a good case for retaining the name in the US if Tom W. Atomic does not market his work in the US and you are not marketing your work in the UK.

But, because you have already been notified that your name is causing some confusion, it would be worthwhile for you to show the letter you received to an IP professional in your area for a more in depth analysis.

Good luck.
 

quincy

Senior Member
#6
Depends on who has more money to throw at a court fight.

I agree with the other responses.

Consult an IP attorney. The money you spend now might avoid you losing tens of thousands later.
Trademark law centers on consumer confusion so it depends less on money and more on evidence of confusion or the likelihood of confusion - but I understand your point that lack of money to fight a trademark holder's claims of infringement can intimidate someone into giving up rights he might otherwise have.
 

mits5k1

Junior Member
#7
Trademark law centers on consumer confusion so it depends less on money and more on evidence of confusion or the likelihood of confusion - but I understand your point that lack of money to fight a trademark holder's claims of infringement can intimidate someone into giving up rights he might otherwise have.
Frankly, while I don't really have any money to fight a legal battle over this, I strongly suspect this dude has no money to initiate one. We're ultimately talking about a couple of artistic entities with very minor followings. I'm ultimately really surprised he's even all that worried about it given how small we both are, how inactive his project seems to be, and how different the musical styles of our projects are.
 

quincy

Senior Member
#8
Frankly, while I don't really have any money to fight a legal battle over this, I strongly suspect this dude has no money to initiate one. We're ultimately talking about a couple of artistic entities with very minor followings. I'm ultimately really surprised he's even all that worried about it given how small we both are, how inactive his project seems to be, and how different the musical styles of our projects are.
The reason a trademark holder asserts rights is that he risks losing those rights if they are NOT asserted.

Trademark holders are responsible on their own for policing the marketplace and spotting (real or perceived) infringers and notifying these infringers of their infringement.

You often have trademark holders who are a bit over zealous. Notifications may be sent even when there is no clear infringement.

You might want to try to negotiate with Tom to see if you can come up with a way for a dual use of the mark. Because you are both in music, a dual use of a similar mark can be problematic but perhaps you can both figure out a way to minimize the confusion generated by your uses.

Good luck.
 
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