Can I trademark a band name even if another band is using it?
They are a small unknown band from the States and have released some music online. I checked on the "United States Patent and Trademark Office" and there is no record of it. Can I trademark it and be safe even if I haven't recorded or played any shows yet under that name? It seems as though all the good band names are taken by these unknown bands that probably will never have any significant success. It'd be nice to know there's a way to weed them out.
~ Montreal, QC, Canada
Trademarks are territorial. I do not know the precise procedure and rules for Canada's trademark registration system.
However, in the US, the US trademark law is likely only going to consider uses of the trademark that occur in the United States. For registration purposes the US Trademark Office will only consider trademarks that are registered in the US Federal Trademark Register. So, if a band was playing and distributing music only in the United States, they would not be likely to consider what was happening in Canada in the selection of a band name. The opposite is likely true, but, I rely on the opinions of Canadian trademark lawyers whenever I need to give advice to a US client. You should too.
For example, with every rule, there are exceptions. For example, a US trademark application can claim priority to Canadian trademark application. Also, there are statutory provisions for famous foreign marks that are unregistered.
Bands are notorious for not consulting with a lawyer when they are getting started. An initial consolation is usually inexpensive. Find a local trademark lawyer to help you get started. Even if you do not immediately proceed with a trademark registration, you will know how much to budget and what you give up by not applying right away.
Good luck with your band.