Keep Calm (register your trade mark) and Rock On
With the passing of some of the great musical icons that have certainly provided the soundtrack to my life (I think of Tom Petty, Leonard Cohen, Prince, David Bowie, Malcolm Young and Chris Cornell) it did not go unnoticed that what followed was a marked increase in sales of their music and associated merchandise.
While it is only natural that as fans we try to capture and commemorate the importance of those whose music and artistic contributions impact our lives, it is often left to the estate of a musician to try to stop rogue third parties trying to exploit or otherwise take advantage of the reputation and brand that an artist has built over their professional career.
Although the media often confuses different types of intellectual property rights, in this instance, we’re not focussing on the well-documented copyright tussles of musicians including Led Zeppelin, George Harrison, Men at Work, David Bowie, Queen and Marvin Gaye – but rather the humble, often underrated, but ultimately critically important trade mark.
Why are trade marks critical to a musician’s intellectual property strategy?
A registered trade mark provides its owner with a legal right and monopoly to the use of a particular sign in relation to specific goods or services. These signs can take the form of words, logos, shapes, sounds, smells and tag lines. Whereas copyright in music or lyrics typically only lasts for 70 years after the author’s death, trade marks uniquely have the potential to grant perpetual rights, as long as they are used and renewed.
Great – but why does a musician or band need a registered trade mark? Put simply, in addition to being an asset, a registered trade mark effectively provides insurance against others exploiting the reputation of the musician or band. A registered trade mark allows the owner to take efficient and effective enforcement action against unauthorised third parties who might inappropriately try to capitalise on the fame or notoriety of the musician or band, or the interest generated in the weeks or months following a musician’s passing.
A registered trade mark also allows for potentially significant revenue streams, such as licensing that might not be immediately obvious to a musician or band when they’re focussed on the creation of their art. This also means that a musician’s legacy, and their works, can provide a revenue stream (if structured properly) for loved ones not only during their lifetime, but also long after they have stopped making music. For instance, the entities that own Bob Marley’s trade marks were able to secure significant damages from a former licensee held to have infringed the Marley trade mark.
Now there will be those who take the purely artistic line that they’re not in it for the money – and to those artists I say that’s fantastic. However, the counter to this is to ask why should someone else be enabled to benefit from your hard work, reputation and creativity? This is especially so when there is a relatively cheap and easy way to safeguard your brand.
When you’re starting out and focussed solely on creating music, protecting your brand and enforcing your trade mark rights are likely to be the furthest things from your mind, but taking the elementary and relatively inexpensive step of seeking trade mark protection can put an artist in an advantageous position to take quick and cost effective action should any issues arise down the track.
Although Yoko Ono’s 2017 encounter with a Polish beverage company over their use of JOHN LEMON resulted in the preservation of John Lennon’s legacy, it would have been all the more easier if JOHN LENNON had been registered before the beverage company thought there was mileage in leveraging John’s legacy. Think about it. How many times have you been on the way to a gig and a block away from the venue, you encounter someone spruiking unauthorised merchandise? So when I see a musician or band getting on the front foot and being smart about their intellectual property by taking the simple but strategic step of securing their name or logo as a trade mark, I always take particular interest.
Haters gonna hate but Taylor Swift, 1D, Metallica, Ben Harper and The Rolling Stones are prime examples of artists with the business smarts and/or the experienced advisors to proactively protect their brands through trade mark registration. From traditional music and entertainment services, merchandise such as t-shirts and apparel to books, mugs, pencil cases and whiskey, securing a monopoly for one’s brand provides artists with a means to exert control – which is made all the more effective with a registered trade mark in the gig bag.
- The value and power of securing trade mark registration early on should not be overlooked. Registered trade marks provide their owners with a monopoly to the use of a sign in relation to specific goods and services and can play a critical role in a musician’s intellectual property strategy.
- Registered trade marks provide insurance should action need to be taken against unauthorised third parties and also allow for potentially significant revenue streams, such as through licensing.
- Long after you’re gone, the music and the brand can rock on.