I have a friend that’s starting a band, and for whatever reason wants to use as a name the name of a band that no longer exists. The band at that time wasn’t famous, but “evolved” and changed names and now is a famous band. I don’t know if that matters, but I thought it might.
Can he use their old name as the name of his band, since it isn’t used anymore? I don’t know if motivation or reason matters, but he’s a fan of the drummer of the band (who was the leader of the old band) and I think sees it as some sort of tribute. So is it up for grabs, or do the members of that band still hold some sort of right to the old name?
IANAL, but I think what is important here is if the band recorded anything using that now defunct name. In cases that I have heard about 2 bands battling for the same name, it always came down to which band had recorded something first using said name. Oftentimes, the band that had recorded using the name first could be “bought out”, meaning they lose all rights to that name.
Band names are trademarked, not copyrighted or patented. To maintain a trademark, you have to be using it in commerce. So if the old band is still selling recordings, you might have a problem.
If I recall correctly Dinosaur Jr. was originally just dinosaur. In fact they even release an album under that name. a group called Dinosaur (which I am 99% sure were no longer together) – featuring former members of Jefferson Airplane sued the band, which forced them to change their name to Dinosaur Jr.
So apparently the original band does retain some legal ownership of the name.
There are similar band names all over the place. There’s a Mexican progressive rock band called Cast; there’s an English brit-pop band called Cast.
There’s an American folk singer named Suede; there’s an(other) English brit-pop band called Suede, who is known as The London Suede in the U.S.
However, more on topic with the OP. There used to be a psychadelic (?) band in the late 1960s called Nirvana, who released at least one (obscure) album. I doubt Kurt Cobain knew about that when he formed his little group in Washington in the late 1980s.
I don’t think you could get away with calling yourselves Led Zeppelin, though. Or The Beatles.
Sorry, but you can’t copyright a band name. All band name disputes are trademark issues.
And just to make it complicated, there are federal trademarks (represented by the ® symbol) and state law (often called “common law” trademarks) (often represented by the TM symbol).
Trademarks, and service marks, are used to indicate an “origin of goods or services.” That’s why you get all these cases of bands suing each other over band names (Platters, Beach Boys, etc. are famous examples). It all boils down to pretty much who is the group of individuals who the public associates with the name. And when the group splits up, that’s where the fighting begins – which of the band members has the better claim to who the public associates with the name.
My guess is that if the friend wants to pay tribute to a now famous rock star by naming his band after the famous guy’s old band, he’s probably going to have a problem, as the famous rock star probably has money and motivation to stop your friend. And he has demonstrable evidence of first use, and probably can show association in the minds of the public with his old band’s name with him, and his former bandmates. So the friend is doing something that has legal risk.
Standard Disclaimer: seek a lawyer out before relying on any advice on a legal question. Which this is.
Willie Nelson in the recent past fronted a band called “The Highwaymen” and it ran afoul of the folk group of the 1960s that had a hit with “Michael, Row the Boat Ashore.”
And woe be the band that tries to use “Beatles” as any part of its name. The trademark infringement suits will send them straight to bankruptcy.
I believe that the group Heart tried to copyright their name. The best they could do was to trademark their logo. I know that legal disputes arise when two bands have the same name, but I have no idea on what basis they are settled.
I think the real reason this isn’t a problem is it serves no purpose to name yourself after something that is out their.
For example if I sold gasoline that was Acme under the name Chevron that would confuse people as gas is pretty much gas.
But if my band calls itself the Beatles it wouldn’t sound like them so what is the point?
For example Cliff Richard (who Americans mostly don’t know but he is the worlds biggest rock star) in the early days his band was the Drifters. But even though his band was first an American group calling themselves the Drifters broke thru and had hits. So he changed it to the Shadows.
Plus there are a lot of ways to go around it. For example in the 70s we had a group called Climax (“Precious and Few”) and in the 80s a group calld Klymaxx (“I Miss You”) Just change the spelling a bit.