Can You Trademark An Artist’s Name?

An artist is often identifiable not only by their work but also by their name. As an artist, your time is often consumed with your art, whether it is literary, artistic of musical in nature. It is common for artists to fail to protect their names. Over a period of time, an artist’s name often becomes an identifier for their works and garners goodwill. While copyright protects the creative work, it does not provide protection to a name. Trademark law governs what can be considered a trademark and what kind of protection a trademark provides to its owner. You can trademark a brand name, logo or symbol, but can you trademark an artist’s name?

The simple answer is yes. The general rule is that it is not possible to obtain a trademark for a mark that is primarily, merely a name or surname. Generally, a name cannot be registered as a trademark if it is nothing more than a name or surname. There is one exception in that if a trademark becomes well known in relation to your goods and services and the trademark obtains a secondary meaning for the public then it is possible to obtain a registered trademark. As an example, McDonald's is a common surname, however through substantial use it has become recognizable as a fast food restaurant and was successfully registered as a trademark in 1965.

When you trademark your name, you reap various benefits. It provides you with exclusive rights over the name and prevents anyone else from using it in association with the same goods and services. After all you do not want to create works for years only to know that there is another person in a similar profession using the same name. When choosing to trademark your name, it is important to note that you cannot prevent other people with the same name from using their names.

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How to trademark an artist’s name?

The procedure to trademark an artist’s name is the same as obtaining a trademark for a brand name. You cannot use names already in use or even those that are confusingly similar. For example, you cannot use the name ‘Jay-Z’ for your music band or even Jay-P, because that might confuse the audience.

A preliminary search can help you to narrow down a list of names prior to applying for a trademark. General searches and searches of the Canadian Trademarks Database and the Trademarks Journal can help you arrive at a unique name.

You also need to determine the basis of your filing. The basis of filing can be actual use or intent to use. If it is on actual use, you should be able to prove that the name has been used in commerce. The intent to use application is filed when your trade name is not actually in use but you intend to use it in future. An application can be filed based on an intention to use, however it cannot be registered until you have begun using it.

Trademarks are categorized into various classes that represent different products and services. Depending on your profession, you must choose the respective class for your products or services and accurately describe them.

While protecting your name as an artist is important, it is equally important to exercise caution while filing for a trademark. Registered trademark agents can prove beneficial in obtaining a valid trademark registration.