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Old 08-15-2014, 06:22 AM
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Default Are we playing illegally?

So here's the deal:

I play in a band by the name of As You Were. We have been an active band since 2009. This morning, we were contacted by another band by the same name. They have been an active band since 2010, but they trademarked the name in 2012.

We are very DIY, and almost always play for free and give our music away for free, so we don't make any money making and playing our music. We just want people to hear it and appreciate it.

Can anybody tell me if we can legally use the name if we aren't receiving any monetary gain from it? Is this covered under 'fair use', or do we legally have to change the name to continue to play?

I only ask here, because I can't find any definitive answers on any online resources I can find. Thanks for any help.
  #2  
Old 08-15-2014, 06:32 AM
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Default Re: Are we playing illegally?

Just on the face of it, since they trademarked their name first, then you would have to stop using the name. If you had trademarked your name in 2009, then they wouldn't have a case.

That's the legal part cut and dried. The other part is to see who is actually still standing in the end. If you guys are still gigging under different names, and they aren't, then I'd say trademark the name you have and keep at it.

Trademarking and branding is good, but having an actual product to give is better.

I read about an issue regarding the Fender Telecaster, and they were initially calling it the Broadcaster, but when Gretsch pointed out to Fender that they bad been using the name "Broadcaster" for their drums, Fender was a gentleman and stopped using the name. And there are actual Telecasters out there with no name on them called "No-casters", before they came up with the name "Telecaster" - which I think is a much better name considering the space-age era of the time.
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Old 08-15-2014, 06:53 AM
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Default Re: Are we playing illegally?

Following Bo's example, I suggest you re-name yourselves.

Henceforth you shall be known as "As You Weren't" .

When you're famous you can send me a band t-shirt.
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Old 08-15-2014, 07:31 AM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by Bo Eder View Post
Just on the face of it, since they trademarked their name first, then you would have to stop using the name. If you had trademarked your name in 2009, then they wouldn't have a case.

That's the legal part cut and dried. The other part is to see who is actually still standing in the end. If you guys are still gigging under different names, and they aren't, then I'd say trademark the name you have and keep at.
I was really hoping that fair use of trademarked material covered if it was for no financial gain, but it only seems to cover if you're providing an unrelated service or if you're using the trademarked material just as a reference to the legal trademark and/or owner(s).

Bummer

Quote:
Originally Posted by JustJames View Post
When you're famous you can send me a band t-shirt.
Coincidentally, I thought at first that we were getting enough recognition to raise concerns for this band, but then I found out that the guy literally just did a facebook search for all pages by that name and made an impersonal, rude post on their walls, rather than politely sending a personal message to the pages and/or individuals.

The thing is, though, we've never liked the name. When the band formed, a bunch of bad names were thrown out, and this one was just the one that was hated the least. Later, we found out that our bass player had thought of a really awesome name, but he didn't think anybody would like it. By the time he told us, we had already started to develop a following, and didn't want to have to start over. Let's hope he still remembers it.

Thanks, guys
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Old 08-15-2014, 08:19 AM
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Default Re: Are we playing illegally?

Given that most bands struggle to get a name beyond their home town, you could always give him the response made famous in the British case of Arkell v. Pressdram.

Although UK case law has no legal standing outside of the UK, it's a case worth looking at.
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Old 08-15-2014, 08:26 AM
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Default Re: Are we playing illegally?

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Originally Posted by JustJames View Post
Given that most bands struggle to get a name beyond their home town, you could always give him the response made famous in the British case of Arkell v. Pressdram.

Although UK case law has no legal standing outside of the UK, it's a case worth looking at.
Hahahaha!

Actually, one of the possible 'new band names' we asked people to give us feedback on was right along those lines.
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Old 08-15-2014, 10:02 AM
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Default Re: Are we playing illegally?

The thing about trademarking is that it stakes a claim to the exclusive use of the name. Regardless of whether for amateur or professional use. It's the right to the name that is registered.

What could happen (as it has in the past) is that your band becomes well known and earning a lot of money and these guys come along and sue you for a million bucks. It's so fraught with legal dangers your best way forward is to just have a different name. Wins all round.
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Old 08-15-2014, 01:08 PM
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Default Re: Are we playing illegally?

What James said - including "As You Weren't", which I rather like!
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Old 08-15-2014, 04:29 PM
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Default Re: Are we playing illegally?

We had a band contact us in a very rude and unofficial manner claiming they had the rights to my last bands name. Luckily I have a friend who is a lawyer. He typed up a very well written response on the practice letterhead requesting their proof of copyright.

We never heard from them again.

Dont ever assume people are telling the truth.
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  #10  
Old 08-15-2014, 04:48 PM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by eclipseownzu View Post

We never heard from them again.

Dont ever assume people are telling the truth.
^ this. just politely ask for proof.
if they have proof, follow Bo's example and change band name to "The No-Casters"

(though I like JJ's "As You Weren't" better)
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Old 08-15-2014, 05:20 PM
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Default Re: Are we playing illegally?

I would go for "Wish You Were"
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Old 08-15-2014, 05:37 PM
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Default Re: Are we playing illegally?

How about "As We Were" or "As We Are?"

Or, WYSIWYG. I like that!
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  #13  
Old 08-15-2014, 06:13 PM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by GRUNTERSDAD View Post
I would go for "Wish You Were"
Or "Wish You Were Her" :)
  #14  
Old 08-15-2014, 06:39 PM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by eclipseownzu View Post
We had a band contact us in a very rude and unofficial manner claiming they had the rights to my last bands name. Luckily I have a friend who is a lawyer. He typed up a very well written response on the practice letterhead requesting their proof of copyright.

We never heard from them again.

Dont ever assume people are telling the truth.
There's a federal database of active trademarks, and they do, in fact have the name service marked. However, he keeps saying they've owned it for 4 years, but the trademark has only been legally registered since 2012.

Either way, I guess we have to figure something out. We've gotten a lot of support from the local following we do have, though, which is awesome.
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Old 08-15-2014, 09:58 PM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by TColumbia37 View Post
So here's the deal:

I play in a band by the name of As You Were. We have been an active band since 2009. This morning, we were contacted by another band by the same name. They have been an active band since 2010, but they trademarked the name in 2012.

We are very DIY, and almost always play for free and give our music away for free, so we don't make any money making and playing our music. We just want people to hear it and appreciate it.

Can anybody tell me if we can legally use the name if we aren't receiving any monetary gain from it? Is this covered under 'fair use', or do we legally have to change the name to continue to play?

I only ask here, because I can't find any definitive answers on any online resources I can find. Thanks for any help.

No !!! You can't use Coke or Pepsi or Disney or the Dallas Cowboys Cheerleaders either. A trademark is a trademark is a trademark. Unless they license you to use it you are hereby ordered to "cease and desist". Look at the bright side, you give all your other stuff away for free. Well now you've given your name away too.
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  #16  
Old 08-15-2014, 10:13 PM
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Default Re: Are we playing illegally?

My friends band in the early 90's was named Bonk. One day a friendly "cease and desist" letter came from some company called Sega. Turns out they had made a new video game and trademarked every variation of the word Bonk. My friends used the cease and desist letter as the flyer for their last show. Google the story of Bully Hill wine. A great cautionary tale about trademark rights. I trademark everything associated with my band early on now. What if you make it and then have to license the rights to your own name from some guy you met on tour a couple years before. This is a business, and oh yeah, you should stop giving your music and performances away too. Maybe you just caught a mean dose of Karma.
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Old 08-15-2014, 11:19 PM
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Default Re: Are we playing illegally?

+1 on "As You Weren't" . Maybe even "Better As You Were"
  #18  
Old 08-16-2014, 12:31 AM
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Default Re: Are we playing illegally?

As You Were band

They probably stole their name from *you.*

slowly phase, band, out. wait a month for them to breakup.

Didn't McDonald's try to sue a very established restaurant in Ireland or somewhere? ridiculous.
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Last edited by resohead; 08-16-2014 at 12:55 AM.
  #19  
Old 08-16-2014, 05:32 AM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by The SunDog View Post
This is a business, and oh yeah, you should stop giving your music and performances away too. Maybe you just caught a mean dose of Karma.
It may be a business to you, but it's an artful expression to us, and that's all we ever want it to be. We're not after money or any of that junk. We just want to share what we create with the people who want to hear it. That's it. What you think we should do is only that; what you think.

That being said, I'm going to discuss our options with the rest of the guys this weekend. It's the perfect time for a name change, anyhow, as we have almost an entirely new set, are about to record a new EP, and are currently booked on an awesome local fest at the end of the month, which we could use as our final show under our current name.
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Old 08-16-2014, 07:04 AM
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Default Re: Are we playing illegally?

Become a cover band of theirs.

Wait, better: become a parody band of theirs.
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Old 08-16-2014, 06:30 PM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by TColumbia37 View Post
It may be a business to you, but it's an artful expression to us, and that's all we ever want it to be. We're not after money or any of that junk. We just want to share what we create with the people who want to hear it. That's it. What you think we should do is only that; what you think.

That being said, I'm going to discuss our options with the rest of the guys this weekend. It's the perfect time for a name change, anyhow, as we have almost an entirely new set, are about to record a new EP, and are currently booked on an awesome local fest at the end of the month, which we could use as our final show under our current name.
Don't get mad, but it is a business and your disdain for that side of it does not make you more artistic. You should call your band the Disneyland Jam or the Pepsi Challenge and see whether or not it's a business. You'll end up in court so fast it'll make your head spin. Think of the bright side though, after the lawyers fees, fines, and damages you will be able to proudly announce that you no longer give your art away, but instead now actually pay to do it and are therefore, even more artistic.
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Last edited by The SunDog; 08-16-2014 at 06:53 PM.
  #22  
Old 08-16-2014, 08:29 PM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by The SunDog View Post
Don't get mad, but it is a business and your disdain for that side of it does not make you more artistic.
http://en.wikipedia.org/wiki/Stik

Stik successfully sued a large corporation recently for reproducing his work without his permission in order to make a profit through advertising. In an interview, he stated that he was perfectly happy for people to use his work for non-profit-making purposes. He just wants people to enjoy his art.

This doesn't make him more artistic either, but it does make him a jolly nice human being.
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Old 08-16-2014, 09:12 PM
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Default Re: Are we playing illegally?

Quote:
Originally Posted by Magenta View Post
http://en.wikipedia.org/wiki/Stik

Stik successfully sued a large corporation recently for reproducing his work without his permission in order to make a profit through advertising. In an interview, he stated that he was perfectly happy for people to use his work for non-profit-making purposes. He just wants people to enjoy his art.

This doesn't make him more artistic either, but it does make him a jolly nice human being.
Jolly nice to be sure, but also business savvy enough to legally own his intellectual property. Thus he can control how that property is used by others or if it can be used at all. I'm trying to impart on the OP that turning a blind eye to such things does not make them less real. He can still be an artist while at the same time covering his "artistic a#%".
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Old 08-16-2014, 09:18 PM
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Default Re: Are we playing illegally?

Seems to me, this is an awful lot like the threads about "I get a strange pain when...", i.e. I think you should consult a lawyer, not an internet drum forum. You may have some legitimate claim because you were using the name first. I know that carries weight in patents, it's called 'prior art'.
  #25  
Old 08-16-2014, 09:33 PM
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Default Re: Are we playing illegally?

"a usually commercial or mercantile activity engaged in as a means of livelihood"

Again, it's a business to you, not to us. There's nothing about what we do that can be described as 'commercial'. We play basements, house parties, and small venues for free. We give our music away for free. We don't want people to have to pay to see our performance or listen to our music. That doesn't make us any more artistic than the next person. Our priorities are just different from those of yourself. It doesn't make us or you any better in any way.

I asked a question about my lack of understanding of fair usage of trademarked material, and I got the answer I wanted. I did not, however, ask how you think we should do things. I wanted factual information, not opinions.
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