What’s in a (Band) Name?: Tradenames And Trade Marks

I want to name our band “McDonalds”. My bandmates tell me this is illegal. What’s up with that?

Everyone who has ever been in a band has probably spent a whole rainy weekend sitting in someone’s basement or living room trying to come up with a band name. Some bands break up before they even get started once they get to arguing over the name (especially when, for example, Sue wants the band named “Sue and the Backup Singers” instead of something more collective, like “The Bandettes”).

A band name is your brand. From a marketing perspective, the band name should be simple, recognizable, and instantly convey a sense of the performance group and its music. “Swirly Rainbows” is probably not the best band name for a heavy-metal group; “Dëarth” is an unlikely moniker for a classical quartet. 

In addition to marketing impact, your brand name/band name also has legal significance. Whenever a person or group of people is engaged in a business of any type, unless you are engaged in that business under your own legal names, the name of that business is a “tradename”, also legally called a “fictitious name”.

Many solo performers and duos book under their own name. Larger ensembles rarely do: “The Mark Spencer—Dave Jones—Mary Jenniker—Amy Craft—Eloise Trumble Band” is hard to fit on a venue calendar. 

However, even solo and duo performers often use a stage name, either a made-up name that helps separate your professional life from your personal life (much as writers use a pen name), or a single iconographic name (Madonna, Elvis...), or a descriptive name for the performance, (The Birthday Party Singer, The Dulcet Duo). 

Whether you are a solo performer or a large band, if you perform under any name other than your own, the law of most states requires you to register that name with your state’s “DBA” (doing-business-as) or tradename registry. In most states, this is located within your state Secretary-of-State’s-Office, and can be done online simply and cheaply, though usually needs to be re-registered annually.  

Historically, snake oil salesmen, magical healers or seers might ride into town, put up a banner with a fake name, then sell poison, rob the audience who was distracted by a spectacle, or defraud those who attended a seance. To protect the public, the law determined that you either had to perform/speak/do any business with the public under your own name, or if you did so under a fictitious name, you had to register that name with the appropriate state office. 

Registering your tradename has advantages to you: It means no one else within your state can perform under that same name. It’s hard enough to get gigs; you don’t want a venue trying to book your classic rock cover band, The Rockers, for a ten-figure New Years Eve gig, and wind up booking the old-time bluegrass band The Rockers from the senior center instead. It makes sense to, at the very least, do an online search – not only through a search engine like Google but also on Facebook and other social media platforms, and in local news sources like a newspaper’s website that would contain band gig listings in its advertising or entertainment section – to ensure there is not already a band in your area with the same or very similar name. 

Technically speaking, a tradename is a simple form of trademark: A name used to distinguish your business in the marketplace. Trademarks can also include any number of other characteristics used to distinguish your business in the marketplace: A logo (the Nike swoop), particularly packaging (the shape of the CocaCola bottle), a color (Owens Corning “pink” insulation). 

Registering a tradename with your state Secretary of State’s office is easy; you can do it yourself without an attorney. Most states allow you to search all the tradenames in the state to ensure that your band name is not already taken by another business. If the name is already taken by a business wholly unrelated to performing, it is probably legal for you to use it, as there won’t be confusion in the marketplace between the band “Ace” and the Ace hardware store. That said, businesses often savagely defend their trademarks against any impingement—and they have to do so, as federal trademark law says you only get to keep a trademark as long as you actively defend it.  So McDonalds is probably a nonstarter for a band name – despite the fact that you won’t be selling burgers, it’s probably not worth risking being sued by the franchise giant.   

Registering a trademark such as a logo with the U.S. Patent and Trademark office is far more complex and expensive. Before you head out on a national tour or sink many thousands of dollars into merchandise, however, it’s a good idea to consult with a trademark attorney and, at the least, have a trademark search done to make sure that you are not stepping on some other band’s already trademark-registered toes. As your show or performance group evolves into a business, it makes sense to invest a bit of money up front to ensure that you won’t need to re-brand mid-tour due to the fact that someone else has already registered your band name and similar logo.