Members fastplant Posted March 27, 2006 Members Posted March 27, 2006 I just recieved a "cease and desist" email from some guy stating that he had our band name trademarked for his band. Now, it's not really a big deal because we already changed the name of our band about a month ago, but I haven't gotten around to changing the website and such. But I'm curious about how all this works. He's saying that we cannot use our name on our website anymore or sell any merch under the name. From what I understand, I can do whatever I want in my area since I had it here first. Here's where it gets trickier, we had the name first and set up our site to prove that before they did. Does that mean anything? What are our rights here, or what would they be if we stuck with the name. It's not really a pressing matter as we played our last show under the old name a while ago, but I'm still curious.
Members Janx Posted March 27, 2006 Members Posted March 27, 2006 I am not a lawyer. But from what i've seen in other threads here is: first use gets the right in most cases regional use of a name is OK and defensible. Basically, you are not a national product and thus other folks can use the same name outside of your region. Actual tradmarking costs $$$ and time. Most bands do not do so (or have the funds). Getting an e-mail "cease and desist" letter is pretty useless. A real one would come in the mail (certified) from a lawyer. Given that you've already changed your bands name, I wouldn't respond to them. Its a no-op situation. Just redo your website (no point having a band site that doesn't reflect your band) regardless of what the other dude is saying. Janx
Members fastplant Posted March 27, 2006 Author Members Posted March 27, 2006 Yeah, we're gonna change the site real soon. We have no shows booked right now so it's not a huge priority. It was just a really arrogant and snotty email and I feel the need to defend myself on principle. They also demanded we hand over our domain name. I know that can't be legal. Can it?
Members fastplant Posted March 27, 2006 Author Members Posted March 27, 2006 Another interesting note is that one of the reasons we changed the name is because it was so generic that there was about 800 bands with the same name. I can't imagine them sending this and having luck with them all.
Members JacieFB Posted March 27, 2006 Members Posted March 27, 2006 How can anyone name their band these days without doing a very simple www.__________.com, www._________.net, and a www._______.org search on the proposed band name? Seems simple enough to me.
Members JacieFB Posted March 27, 2006 Members Posted March 27, 2006 Originally posted by fastplant Yeah, we're gonna change the site real soon. We have no shows booked right now so it's not a huge priority. It was just a really arrogant and snotty email and I feel the need to defend myself on principle. They also demanded we hand over our domain name. I know that can't be legal. Can it? Sell it to them. Seriously. It would be cheaper for them to buy your website at an inflated price than it would to retain a lawyer to threaten you.
Members guitarmook Posted March 27, 2006 Members Posted March 27, 2006 If you had the name first, in your area, it would be impossible for them to GET a trademark. Ask for a copy of the trademark, and proof of when they demonstrated use of the name in your area. Sell them the rights. Both to use the name in your area, and the domain name. Don't just walk away and let them have it. Use the money for studio time or a beer bash or something.
Members zookie Posted March 27, 2006 Members Posted March 27, 2006 Originally posted by JacieFB Sell it to them. Seriously. It would be cheaper for them to buy your website at an inflated price than it would to retain a lawyer to threaten you. I like the way you think!
Members Base Posted March 27, 2006 Members Posted March 27, 2006 I'm pretty certain they can't simply demand the domain name, even if they have copyrighted the band name! That's why there were all these problems with people buying domains like www.madonna.com (made up example, I don't know if she specifically had problems) and offering to sell it for thousands!!!! You could always now put up a spoof website and ridicule these other guys until they pay you a fortune I think it was the company Price Waterhouse Cooper who changed their name to PwC a few years back but forgot to buy the PwC domain name quickly enough. So someone else did and put up a site explaining this before bursting into an animation of stick men dancing to music with the caption 'We've got your website, nya nya nya nya nya, you suck!!!' (or words to that effect It was a PwC employee that forwarded it to me, they found it hilarious, the managers were furious tho
Members Gunslinger69 Posted March 27, 2006 Members Posted March 27, 2006 Originally posted by fastplant I just recieved a "cease and desist" email from some guy stating that he had our band name trademarked for his band. Now, it's not really a big deal because we already changed the name of our band about a month ago, but I haven't gotten around to changing the website and such. But I'm curious about how all this works.He's saying that we cannot use our name on our website anymore or sell any merch under the name. From what I understand, I can do whatever I want in my area since I had it here first. Here's where it gets trickier, we had the name first and set up our site to prove that before they did. Does that mean anything? What are our rights here, or what would they be if we stuck with the name. It's not really a pressing matter as we played our last show under the old name a while ago, but I'm still curious. If you want to research whether he's being truthful about having trademarked the name,http://tess2.uspto.gov/bin/gate.exe?f=tess&state=m8b1l1.1.1 I would say that you need to take whatever steps you can to protect your rights - what if you decide you liked the old name after all?
Members fastplant Posted March 27, 2006 Author Members Posted March 27, 2006 Originally posted by Gunslinger69 If you want to research whether he's being truthful about having trademarked the name,http://tess2.uspto.gov/bin/gate.exe?f=tess&state=m8b1l1.1.1I would say that you need to take whatever steps you can to protect your rights - what if you decide you liked the old name after all? Hmmm, I don't see it in there.
Members Jiggs Posted March 27, 2006 Members Posted March 27, 2006 Definately sell them the domain, don't just fork it over.
Members kerf Posted March 27, 2006 Members Posted March 27, 2006 I can *demand* anything. Getting it is another matter. If he had asked nicely, I would say work with the guy. Since he was a jerk, that gives you the right (and possibly the responsibility) to eff with him a bit. Studio time and beer money is a step in the right direction.
Members Blackbelt1 Posted March 27, 2006 Members Posted March 27, 2006 Offer to trade him the domain name in return for a new Gretsch White Falcon and Fender Twin. After all if you're going to change your name on his account, you'll need some new tools with which to establish your new identity. ~Blackbelt
Members fastplant Posted March 27, 2006 Author Members Posted March 27, 2006 Hehe, true. I certainly don't plan on just hading stuff over. I was just curious how this all works. Now, I was looking up alot of this, and it looks like who ever uses the name first in an area has rights to that name in that area, regardless of trademark. I doubt this other band is a national act, so say I wanted to keep the name, it doesn't look like there would be much of an issue unless they regularly played around here.
Members Jiggs Posted March 27, 2006 Members Posted March 27, 2006 Originally posted by Blackbelt1 Offer to trade him the domain name in return for a new Gretsch White Falcon and Fender Twin. After all if you're going to change your name on his account, you'll need some new tools with which to establish your new identity. ~Blackbelt lol
Members EdgeOfDarkness Posted March 28, 2006 Members Posted March 28, 2006 You can not copywrite a band name.Only trademark it, but here is a good write up of what you can and can not do.http://www.music-law.com/bandname.html the trademark symbol, "®", can only be used if you have a federally registered trademark. By using the "®" symbol, you put everyone on notice that you own the trademark and anyone using it would be a wilful infringer. There is also a "TM" symbol used occasionally. This has no legal definition or significance, but is generally used to claim ownership of an unregistered trademark.
Moderators daddymack Posted March 28, 2006 Moderators Posted March 28, 2006 Frankly, I would respond to the e-mail telling them that you are not willing to surrender the name or the domain without due recompense...in other words, they need to pay you off. I would also tell them that in the the meantime, because of their insulting approach, you fully intend to change the existing website into one telling this ridiculous saga, similar to the PwC story, and just embarass these cretins...they have no legal standing, even with a registered trademark, to demand your domain name. That will either make them come up with some kind of deal quickly, or blow them out of the water. Is your domain a ".com"?
Members fastplant Posted March 28, 2006 Author Members Posted March 28, 2006 Originally posted by daddymack Frankly, I would respond to the e-mail telling them that you are not willing to surrender the name or the domain without due recompense...in other words, they need to pay you off. I would also tell them that in the the meantime, because of their insulting approach, you fully intend to change the existing website into one telling this ridiculous saga, similar to the PwC story, and just embarass these cretins...they have no legal standing, even with a registered trademark, to demand your domain name. That will either make them come up with some kind of deal quickly, or blow them out of the water. Is your domain a ".com"? It is, I think that's why they want it.
Members Gunslinger69 Posted March 28, 2006 Members Posted March 28, 2006 Originally posted by fastplant Hmmm, I don't see it in there. Then his claim to have trademarked it is BS. Send a reply asserting your ownership to the name to put the ball back in their court.
Members fastplant Posted March 28, 2006 Author Members Posted March 28, 2006 Originally posted by Gunslinger69 Then his claim to have trademarked it is BS.Send a reply asserting your ownership to the name to put the ball back in their court. Actually, it showed up later in the day, it's legit.
Members El Glom-o Posted March 28, 2006 Members Posted March 28, 2006 Originally posted by fastplant It was just a really arrogant and snotty email... Perhaps one of you could change the name of your band to "Sneering Sammy Snot and the Sinuses".
Members EdgeOfDarkness Posted March 29, 2006 Members Posted March 29, 2006 If they have never played your town / state or have released any Music there, then you have no worries.
Members BillW Posted March 30, 2006 Members Posted March 30, 2006 Been through this before. A proper Cease & Desist should look very official ( i.e. if it looks real - it probably is - it should have a law firm letterhead etc..)They can back it up then, and you'd have to cease if you you use the name anywhere where they use it( This isn't exact - but if they can prove you are regionally infringing then you lose ...but obviously a local band from say, AZ has no rights over a local band from say NY) The domain on the other hand is yours, if you registered it - it belongs to you unlti it expires. They can pay you for that, otherwise they have to try and claim it when your registration expires.
Members Monsoon Posted March 31, 2006 Members Posted March 31, 2006 Just a warning, there's a lot of bad advice and mis-information in this thread about how domain name ownership issues work.
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