Today’s question is more business than technical oriented, but we see enough questions like this that we’d like to respond.
“What are the steps to creating or simply giving a name to a home studio? Are there legal things to keep in mind? All I want to do is put a clause on each CD that my band makes, stating that it was recorded at XXXXX Studio, and not get into any legal crap over it.”
Legal crap? Hmm, never quite thought of it that way, but that probably sums it up for many of us.
Simply adding a ‘clause’ [which sounds a bit like legal speak] to any CD, cassette, etc., about the origin of the recording is a perfectly legitimate and reasonable thing to want to do. The only thing to be concerned about is whether or not the name for your studio has already been taken. This is more of a trademark/name ownership issue than it is anything else, so you’ll have to do some research first.
Initially, search the Internet for the name you want to use for your studio. A basic all-around search will work first, just to see who might be out there using the name you want. The thing to look for specifically is whether or not the name is being used for the same or similar industry that you are. If you want the name Smokin’ Recording, for instance, but somebody else is already using Smokin’ Records, you could have some problems, but really only if the other business using the name finds out and wants to press the issue. If you’ve established the use of a name in an industry, you can claim that anyone else trying to use it for a similar purpose (audio & music related in this case) is defaming you and causing you loss of profits. Of course, this may have to be proven in court, but you really don’t want to get to that point if you can help it.
Another thing to consider with trade names is geographic location. If two users of the same name can agree that they don’t share the same territory so there’s actually no damage done, than two businesses of similar functions can coexist with the same or similar names. This will depend completely on whether or not the interested parties can agree to work this way. Ultimately, if there’s a disagreement (followed by legal action, presumably), the first established user of the name will be found as the legitimate owner if neither party has established a recognized legal claim (i.e. a Trademark or Service mark).
Now if you find that there’s a trout hatchery in Washington state that’s using Smokin’ for their business, you probably don’t have anything to worry about – it would be very hard to prove that your use of the word Smokin’ is causing that particular company any defamation or loss of business. But that doesn’t mean they won’t try to sue you!
After you’ve searched the Internet generally, go to http://tess.uspto.gov/ and search through the registered Trade/Service/Word marks to see if the name hasn’t already been spoken for, legally. This is the best resource to help you decide whether or not to go ahead and use the name you’ve been considering. When searching at this site, pay attention to the ‘Goods and Services’ to which the name is supposed to pertain – if they relate to what you’re doing, you should pick another name, if they don’t, well, that’s a gray area. For instance, you probably shouldn’t go ahead with something like ‘Chevrolet Recording’. Large, easily recognizable corporations tend to want to protect their unique identities aggressively (and have a whole team of lawyers to do it)…just a warning. And even smaller businesses may decide to take offense because they feel strongly that the name – especially if it’s a unique one – belongs to them, regardless of its intended use. Once again, a judge may decide otherwise.
At this point it’s your option as to whether you should apply for a Trade or Service mark yourself. It costs some money, but definitely gives you protection against anyone trying to trade on your name, or accuse you of stealing theirs. If you don’t want to go ahead with that you may at least want to file a DBA [short for Doing Business As] with your local county clerk that says (more or less), “My name’s Jonny Rock and I’m doing business as Smokin’ Recording at 2496 Audio Dr.” It might cost you $10-20 (or more – differs from area to area) but gives you at least a basic legal claim to your business name, and more importantly an established date of inception for the use of the name. Of course this also makes you an official dues- [er, um, TAX-] paying member of the local business community.
But nothing assures you of being able to prevent getting into any legal entanglements – if someone wants to sue you for whatever reason, legitimate or not, you’re forced to defend yourself legally. Also if someone eventually (and even unknowingly, because they didn’t do any of the research you’re about to do) uses the name you’re using, it’s up to you to decide what steps you are prepared to take to stop them. Of course a properly filed and registered Trade or Service mark gives you a much stronger legal stance, and provides you with more remedies (court injunction to cease and desist, financial compensation for damages and loss of profit, etc.). If you know a good lawyer a simple ‘cease and desist’ letter making the offending party aware of your existence and claim may be all it takes to convince them to stop using your name for their business.
NOTE: If you are considering protecting your name, please take the time to visit the Trademark and Patent Office website at http://www.uspto.gov/ to really get the inside information; and/or consult a qualified attorney. The writers of inSync are not lawyers and do not even pretend (or want) to be the final word for any of our readers on such legal matters. They would be more suitable for an attorney! Good Luck!