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Can I trademark a band name before success?

Can I trademark the name of a band that hasn't had any significant success?

This band released an album but didn't trademark their name. Can I trademark it and be safe even if I haven't started playing shows or releasing albums yet? Oh and also, can I trademark the name of a band that isn't active any more? Thanks,

~ Tyler from Montreal, QC, Canada

First things, first. You are in Canada, and, the trademark law is different in each country. I am answering your question assuming that this band plays and releases albums in the United States. I also assume that the band would apply for a trademark in the United States. Canadian trademark law might be similar, but, you should consult with a Canadian trademark lawyer.

Yes. You can apply for trademark rights before use by filing for a US Federal Trademark based on intent to use.

In the US, this is the only way to obtain trademark protection prior to actual use. By filing a US trademark application and having a bona fide intent to use the trademark, the US trademark application can eventually register, after actual use.

Keep in mind that each service or good listed on the application needs to be actually used with the trademark. So, keeping good business records may be vital, keep good records about your plans to use the trademark, the dates that you offer services (perform live performances), sell recordings, release albums, or allow downloads of MP3s, or give out t-shirts, etc.

Good business records may eventually become important in any later enforcement of your trademark. I recommend consulting with an attorney when filing an intent to use trademark.

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