Can a New Band Legally Use an Old Band's Name?
Are you a musician? Is your group having issues? Ask Fan Landers! Critic Jessica Hopper has played in and managed bands, toured internationally, booked shows, produced records, worked as a publicist and is the author of The Girls' Guide to Rocking, a how-to for teen ladies. She is here to help you stop doing it wrong. Send your problems to her -- confidentiality is assured, unless you want to use your drama as a ticket to Internet microfame.
My label released two records by a band that has broken up. I just discovered on Facebook some kid who seems to be a singer-songwriter and is performing under the same name. Just as a heads up I thought I would message this kid [REDACTED], who seems to think it's OK because the type of music he plays is different, and he wants to know if I am coming at him "legally." I don't really have much legally vested interest and I'm pretty sure I care more than the former band does at this point, but it would affect my label in some minor way and dilute any sort of name recognition the band built up. Do I have any legal standing in this, or am I cyber-bullying a stubborn kid?
You do have a legal standing! You have the right to not have this over-confident young man with a sense of rhythm that runs from abysmal to non-existent sullying the work you released. The fact that he has 125 Facebook likes and lives half the country away from the broken-up punk band with 445 likes matters nothing, for the same reason that I cannot reasonably expect that it would be okay if I started a Mr. Bungle-style band and called it The Black Keys [shudder].
"Likelihood of confusion" is the legal consideration here. Maybe, in a pre-internet era, being different genres might have applied, but here in internetland 2014 a band is a band is a band. Likelihood of confusion even covers bands with similar sounding names working within the same country. As much as I applaud this guitar-slinging young broseph telling you "It's OK," you are free to tell him "Actually, it's not," and do so in a letter asking him to find another band name. If you would like to be official, find a lawyer friend to draft something, or seek out a small business law clinic in your city and see if they can help you, if you do want to go after this kiddo.
Do you ask him to change the name on principle? Or to stem confusion early just in case he takes this beyond his dorm room, perhaps turns into the Kenny Loggins of the lower midwest after a summer of woodshedding? You could also kindly suggest to him that it's better to take care of this issue now, rather than once he has a record out or gets a record deal, effectively erasing his brand. You would actually be doing him a favor in that case. The law is not on his side, regardless, so it's your call how much of a hard ass you want to be about it, or if you want to take his advice and "chill."
Best of luck,