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Can I use my last name in my music career if it's trademarked?

I have used a surname since I was 10 years old. I am now pursuing a music career under that last name. The name is trademarked. Because of this can I not use the name?

~ Texas

This is a good question. It depends. For example, what is sold with the trademark, and for how long? Are you 14 or 50, and how long have you played professional? Likely, you will need an attorney to help you answer the question. The attorney will need to know more.

For instance:

  1. How old are you now?
  2. Why did your name change?
  3. When did you first start playing professionally, what name were you using then?
  4. When was the trademark registered, and, what is the trademark registrations goods and services?

From these questions, likely, the attorney would ask even more questions. Once the attorney understood your situation, the attorney would compare your situation to not just the law, but also, the cases that have been decided interpreting that law. From there, the lawyer could give you advice on what to do next.

Let's make some assumptions to see how this would work. Let's pretend that you are 13 years old, you changed your last name (with your parent's consent?) to match your favorite rock star's last name, and let's say that the trademark belongs to the rock star for live musical entertainment. While you might have some right to change your name, these facts would suggest that trademark infringement is likely.

On the other hand, let's assume these facts. Let's pretend that you are 55 years old and have been playing professionally for 40 years. Then, let's pretend the trademark is for a tax accounting firm, which happens to be the last name of one of the partners, and that the tax accounting firm was formed and the trademark filed 3 years ago. In this case, it would be likely that no trademark infringement would occur.

Of course, in real life, questions are not this easy. Here are two cases that show how trademark decisions are sometimes made when they involve the last name of famous celebrities.

First is a case involves Gene Simmons (of rock and roll fame: KISS ). In this case, the trademark application was for SIMMONS COMICS GROUP, who was selling comic books. The trademark registration was refused, not because Gene Simmons was famous, but, because the trademark was descriptive.

The second case involves Twiggy, a famous international model from the 1960s. In this case, the TTAB cancelled a registration for TWIGGY, which was used to sell clothing and apparel. The TTAB reasoned that the international model still had enough fame that purchasers would assume that the the clothing was connected with her, and, that this would create a false connection under section 2(a).

Finally, this last case also talks a bit about the last name Miller when used with restaurant services when compared to the famous MILLER brand of beer. In Re Twenty Three East Adams Street Corp .

So, how to apply any of this information to your specific situation is how a lawyer might help you with your decision to use your last name in your music career.

Good luck in your music career!

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