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For Those About to Rock: Think About Trademark Law

On Friday, The Broken West played live on the air on KEXP, a great indie-rock station, which also happens to be located right here in Seattle. I hadn’t heard them before, but their story was familiar. Until last year, they were known as The Brokedown. Then they received a cease-and-desist letter from a band called The Brokedowns. With 1,000 copies of their debut album already pressed, they went into “panic mode” and changed their name to The Broken West.

The Broken West.jpg

The Broken West: They Learned Trademark Law the Hard Way

“I think we probably could have fought it, but it would have been really expensive and time consuming,” frontman Ross Flournoy said.

Up-and-coming bands seem to re-live this story again and again. Blink 182 was Blink before another group named Blink threatened to sueDinosaur Jr added the suffix after the San Francisco band The Dinosaurs protested. Looking no further than Seattle, rockers Kill Sybil say they changed their name from Sybil because of an R&B singer with the same name; ECU reportedly changed its name from ICU because New York-based Intensive Care Unit threatened to sue; and Nirvana (Seattle) settled a case brought by Nirvana (UK) so it could keep its legendary name. 

There is a definite pattern here. Unfortunately for the upstart bands, the cease-and-desist letter comes after an album is released, a tour has begun, or some amount of name-recognition has taken hold. That makes the name change that much more painful. It’s admittedly not realistic to expect a new group to hire a trademark lawyer before starting to play local venues. But it should not be unrealistic for a band to seek trademark advice before putting out its first disc or going on its first tour. At the very least, a careful Internet search for similar names could save band members anguish down the road.

Take a tip from Fall Out Boy, who was nominated for “Best New Artist” at last year’s Grammy Awards. It re-named its song “My Name is David Ruffin and These Are the Temptations” to “Our Lawyer Made Us Change The Name Of This Song So We Wouldn’t Get Sued.” Why? Because it wanted to avoid a lawsuit from the estate of ex-Temptations singer David Ruffin. And, as The Wall Street Journal Law Blog reported, because the lead singer’s dad is a lawyer.

Lucky for them. As I’m sure The Broken West would tell you, a little trademark due diligence on the front end can avoid a painful name change later on.

The same holds true for any new business or product.

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Reader Comments (1)

Thanks for the kind words, Michael! Helpful info.

-Tom Mara, Exec Dir, KEXP
January 26, 2011 | Unregistered CommenterTom Mara

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