Monday, October 22, 2012

Hey! You stole our band name!

No two businesses that offer the same or similar product or service can have the same name in the same market.

What does that mean, exactly? If I own Bob's Card and Gifts in London England, and find out there is another Bob's Card and Gift in New York, that's okay. We're offering the same product/service, but we are hardly competing in the same market. It's not like anyone is going to get us confused. In fact, since the market for a card and gift shop is generally a community market, or at least a local market, you could have a Bob's Card and Gift in pretty well every city and town. People don't tend to go to the next town to buy birthday cards.

Now... I can NOT open up a restaurant and call it McDonald's. McDonald's has successfully managed to expand their market to a point where they are global. No matter where you are, if you are a restaurant called McDonald's, there is another McDonald's already offering that product/service in that area. Funny, too, that you really start tempting trouble if you were to call yourself anything really close to that either. I wouldn't use MacDonald's, McDoonalds, etc.

So what does this mean for band names? Bands, like any other business or service, CAN share a name, as long as they are not competing in the same market. In other words, if one band is in Australlia and the other is in Florida, that’s fine. You're offering a similar product/service (musical entertainment), yes, but not at all in the same market. At least not yet. It's not like someone out there is going to confuse the two bands and buy the wrong product.  You're half a planet away!

If, at some point, one band gets big enough and starts to do business in the other band's market, then one band will have to change their name. (Bush had to operate as Bush X, but only in North America IIRC... there was no other confusion in any other market) The band who had the name first *in that market* gets to keep the name *in that market.*

Similarly, the Raconteurs work as the Saboteurs in Australia. Note that the two bands aren't even in the same genre, but are still providing musical entertainment, so there is a problem. Kinda like you could open a bowling alley and call it McDonald's, but you can't open a restaurant and call it McDonald's.... even if it is an up-scale vegan restaurant. It's still a restaurant.

Generally what happens then is that one will buy the other out for rights to the name, or like Bush/BushX/Raconteurs/Saboteurs will change their name to work in that new, previously un-tapped market.

Here is a corporate example....

There was a little independent bookstore in a small town in Ontario called Chapter's. There was another much larger bookstore who started to become a small chain of bookstores in British Columbia called Chapters. (note the difference in spelling....) No problem. They're offering a similar product/service, yes, but in entirely different markets. Literally three time zones away.

What happened, though, is that the chain in British Columbia continued to expand. Eventually, they expanded not only into Ontario, but to a medium-sized city about 10 minutes away from the small-town Chapter's.

Now, we have two businesses offering the same product/service, with *almost* the same name, operating in the same market. Could one easily confuse Chapters with Chapter's? You bet. If someone asked you to go to Chapters and buy the latest Harry Potter book, would you know which of the two stores to go to? Nope. Now we have a problem.

The mega-chain Chapters, to make a long story short, could have been disallowed the opportunity to use the Chapters name in their new market, as the other Chapter's was there first. Ultimately, as I understand it, the smaller independent Chapter's in the small town was paid out handily enough by the much larger corporate chain Chapters that he pocketed the money, changed thename of his store, and kept going.

BTW... you don't need to be a hugely successful business to prove that you are doing business in a certain market. Do you have product for sale? Are you gigging? Can you prove that? Then you are doing business in that market. Can they prove that they are doing business similarly in their market? Then they are doing business in that market.

Just because it is available on the web doesn't mean you are doing business around the world. Sure, some person *could* log onto iTunes from Zimbabwe and buy my song from iTunes, but what are the odds, really? Assuming they're not likely to buy (never mind, even *find*) some random song/album from some random band they've never heard of except for the 30 second snippet iTunes lets you hear, why would they buy it? Have you toured there? Gotten radio play there? Any print articles about your music? Nope. You're not doing business in that market, then, are you? I mean have *you* ever bought music off the internet from some band *you've* never heard of? :lol:

We sell our stuff on line through our own website. Same idea. We have international distribution now, right? Well.... I'm in Canada near Toronto. We have sold 99% of our CD's to people within an hour's drive of here. We've sold the others - one to New Jersey and one to Ottawa - to people farther away. (though we have had *listeners* from much further away, they don't count as doing business as they are not spending money) It really seems unreasonable for us to declare that we are now doing business in the New Jersey market, though, doesn't it?

It should be pointed out, then, that none of the following mean anything in this matter:
- who is better
- who had it first (at least until someone moves into the other band’s territory)
- whether or not you or they are signed or not
- adding “the” in front of your name won’t make a lick of difference. Do you think McDonald's would be satisfied with another restaurant called "The McDonald's?" Nope.

Protecting your name:

You can't copyright a band name. You can register it as a business, which allows you to prove that you are offering a product or service in a certain market, but doesn't really do much else as far as someone else using the same name. Now, you can *trademark* a name (or more to the point... a "service mark"), but that is a whole other kettle of fish in terms of red tape and monetary cost. A trademark is usually done to protect a logo or something. Think of McDonald's golden arches 'M' for instance, or the Nike swoosh. You don't copyright a logo. You register it as a trademark.
...apparently takes about a year and costs about $1500....

Canadian link says up to two years and costs nearly double that...

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