Entertainment Law FAQ

What is a trademark or service mark?

A trademark is a distinctive word, phrase, logo, domain name, graphic symbol, slogan, or other device that is used to identify the source of a product and to distinguish a manufacturer's or merchant's products from others. Some examples are Nike for sports apparel, Gatorade for beverages, and Microsoft for software.A service mark does the same thing as a trademark, but while trademarks promote products, service marks promote services and events. Some familiar service marks are: Kinko's (photocopying service), Blockbuster (video rental service), and the FedEx logo (delivery services).In order to be eligible for trademark protection, a word or phrase must be "distinctive" -- unique enough to help customers recognize a particular product in the marketplace -- rather than generic, like "The Coffee House."

How a trademark can help or hurt an emerging recording artist?

Trademarks identify to the consumer the different products and services of record companies, performers, and collateral products. If someone infringes on your trademark, you might do what Jimmy Buffett did to assert his rights to the term "Margaritaville," the name of one of his most popular songs. Chi-Chi's, the popular restaurant chain, began using "Margaritaville" for a section of its restaurants. It also filed a trademark application with the U.S. Patent and Trademark office for "Margaritaville" for restaurant services. Buffett opposed Chi-Chi's application based on a section of the trademark statute which prohibits registration of a mark that falsely suggests an association with a known person. Buffett alleged that "Margaritaville" was his creation, that the public had come to associate the term with him, and that he had not given his consent to use of the term by others. His evidence included not only his famous song and the sales and publicity it generated, but also news articles referring to him as "Jimmy (Margaritaville) Buffett" and "The Poet of Margaritaville."

Buffett won a summary judgment motion. The Trademark Trial and Appeal Board found that "Margaritaville" had indeed become so closely associated with Mr. Buffett, that customers would believe he was in some way associated with Chi-Chi's services, when he was not. After that ruling, Chi-Chi's and Buffett negotiated a license permitting Chi-Chi's to use Buffett's creation, "Margaritaville."

Brian is a partner at SmithAmundsen LLC in Chicago where he serves as the co-chair of the firm’s Entertainment, Media and Privacy practice group (Brian works with record labels, artists/bands, publishers, producers, agents, managers, venues, distributors, and other entities within the music industry. Brian’s practice also covers film, television, and literary publishing companies, working with reporters, media agencies, news-gathering organizations, etc. Click here for Brian’s full professional bio.

Please note the legal disclaimer following this week’s topic. For specific legal information, please contact Brian at his office: 312.894.3358 or brosenblatt@salawus.com .

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