Why trademark your artist name?
A trademark is a particular name or special feature that enables consumers, fans and music listeners to distinguish one artist from another. Trademarking is even more important in the digital world where music is sold by way of streaming from DSPs – Digital Service Providers – such as Spotify, YouSee and Apple Music. We estimate that DSP streaming accounts for more than 90 per cent of music sales in the Nordic Region.
“We’re seeing examples of artists being presented with ‘cease and desist’ letters by foreign lawyers representing a rightsholder who had already trademarked a certain artist name,” says Morten Jessel, assistant attorney specialising in entertainment law, who is based at Patrade’s Copenhagen office. He continues:
“To avoid letters of that nature, it’s important to have a handle on one’s own artist name, and to seek professional advice about whether a specific or a future artist name can be trademarked and in which countries it would make sense to apply for it.”
Morten has a background as a legal & business affairs manager with Warner Music Group, and he knows of several cases where an artist’s generic artist name has caused trademark difficulties.
A good example is the Norwegian duo ‘Nico & Vinz’ who changed their name from ‘Envy’ in 2014.
Morten points out that a search on Spotify for the artist name ‘Envy’ produces a list of more than 50 artists using the same name, and not all artist names can be trademarked.
Registering an artist name for the purpose of selling music and merchandise
Artists, managers and record companies ought to consider a brand strategy at an early stage that takes into account the potential for trademarking the individual’s artist name. This could prove crucial, especially if the artist were to become a success in both domestic and international markets.
In Denmark, a trademark may be obtained based on use or by registration. Importantly for the music industry, the Danish Patent and Trademark Office requires trademarks to have a distinctive character that cannot be mistaken for other trademarks.
A registered trademark provides a number of benefits as well as better protection compared to a trademark that has been established entirely through use due to the challenges involved in documenting your actual use of a trademark. At Patrade, we recommend that artists always register their trademarks in jurisdictions where their music or merchandise may be expected to be sold.
For many artists, their record contracts already contain information about trademarks, such that the record company has acquired the rights of registration, while the rights may be transferred to the artist on termination of the collaboration.
This makes good sense for all parties, according to Morten Jessel. He points out that today's record companies have increasingly taken on the role as a kind of ad agency for music:
“Record companies spend incredible sums of money on marketing their artists, so protecting an artist’s name and goodwill against [freeloaders/-riders] on DSPs by trademarking it is also in their interest.”
The US model
It is quite common in the US music industry to trademark artist names, whereas this is a fairly recent phenomenon in Denmark.
“That’s actually quite odd, because trademarking in the US is often a more complicated process than it is in the EU or Norway, because the USPTO (the United States Patent and Trademark Office) requires artists to have released several albums or EPs,” explains Morten, but he points out that Patrade can address a situation like that by way of an intent-to-use application which would give the artist a period of three years in which to meet the requirement and protect the trademark in the United States for that period.
Trademarking gaining ground in the Danish music industry
Morten thinks that historically, an artist name has not been considered from a business perspective in Denmark to any sufficient degree, that is, as a trademark with a commercial value that could be sold or licensed to others. He does emphasise, however, that this approach to the music industry is changing.
In Denmark, established artists like Joey Moe, Volbeat and Lukas Graham have already registered their artist names as trademarks, and Morten anticipates growing interest from artists, managers and record companies in the coming years.
If you would like to know more about this topic, please feel free to reach out to Morten.