When creating a musical project, there are many issues that must be addressed from the field of art; Although in the legal also there are issues that must be taken into account. One in particular: your trademark.
From "The 5 most common mistakes of a musical project"There is one I would like to add. Musical projects almost never think of their trademarks.
Musical projects need a name that identifies them, that allows the public to recognize them, ask them on the stage. That name, depending on the quality it has, and the strength of the project, should be protected according to the existing alternatives.
The easiest way to protect the name of a music project is to register it as a trademark.
The name of a musical project - be it a group or a solo artist - must be registered as a brand. This will enable them to acquire ownership of the name in the cultural services market; The 41 class of the Nice Classification. In Colombia, the application for registration is filed Superintendence of Industry and Commerce.
Often times the entertainment lawyers advise that registration of the name of the group or soloist as a brand is made as soon as possible. We note that since there is no risk of:
- Someone else uses that name in the trade to perform similar activities without authorization;
- Other people not involved in the project register the mark;
- Only some members of the group, register the mark excluding other members of the band.
This last scenario is more common than one believes.
We want to show two cases in Colombia where this happened and which reflect the importance of brands for musical projects. With this we want to highlight why it is vital to protect these intangibles.
The first case is the group Polygamy, a rock band from Bogotá, active between 1990 and 1998, composed by Andrés Cepeda, Juan Gabriel Turbay, Gustavo Gordillo, Freddy Camelo, Virgilio Guevara and César López.
Each of its members continued with their own cultural projects in different markets after the group broke up; As soloists, musical producers, audiovisual producers and composers. Last year they did a tour of reunion concerts in different cities of Colombia.
An identical mark was applied for in the 2016 by Luis Miguel Olivar Jiménez to identify services of "Education and leisure (Musical Grouping)" in the 41 class of the Nice Classification.
The Superintendency of Industry and Commerce denied the request, after carrying out the background study. The reasons for the decision were that the mark was requested by a third party that was not identifiable with the attributes, name or personality of the persons recognized by the public as the group Polygamy. Mr. Olivar could request it, but he needed to demonstrate what he was doing with the consent of the members of the band.
In this case, the level of recognition of Polygamy as a band must be taken into consideration, especially for those who know their music or lived first hand the era in which the group was in force. The fact that it is a band that was successful, and that the members that made it remain linked to the world of entertainment, makes its influence in the market, even after 20 years, remains in force.
The second case is the La Toaster brand. This brand is born of a party made by a group of friends, after several versions. It served as inspiration for two citizens to launch their own sound. They took the name La Tostadora to identify their musical project.
In August of 2016, one of the members of the project asked the Superintendence of Industry and Commerce to register the La Tostadora brand, in the 41 Class of the Nice Classification, without authorization from the other member of the musical group.
This case shows the importance of making a pact within the musical group, where the members establish their obligations, rights, ownership of creations and works, exit mechanisms and other details relevant to the band.
Is it worth putting together a lawsuit unnecessarily among peers in a group?
At the moment the request of the mark the Toaster is being studied by the Superintendence of Industry and Commerce. Once a study of the sign has taken place, it will decide whether to grant or deny the registration of the mark.
Here it will also be important to take into account the recognition of the band and the ability of the examiner to identify the attributes, name or personality of the members with the band.
We still do not know the final decision regarding this request, but we will update them.