"Attractive Nuisance" or "Acoustic Nuisance": Trademark Challenges and Rock Band Names
I learned early on in my "musical career" (I love saying that!) that if I was willing to just play rhythm guitar, I always had a place in the band. That's me in the blue hat, playing with my law school band at the late, lamented King Louie's in St. Louis, before it was the elegant restaurant it later became.
Like many budding rockstars, we thought we sounded way better than we actually did, and we had to have a cool band name. Being dorky law students, we couldn't resist taking a name from Torts class: "Attractive Nuisance." That's right--as a band, we were a swimming pool without a fence.
Those fond memories of coolness came flooding back to me the other day when I saw this article in the ABA Journal about trademark challenges surrounding rock band names. Apparently all the cool band names have been taken by other bands, or else they are trademarks for some other class of goods or services, like Captain America. What's the next great band to do?
Bands choosing a name face the same trademark challenges that apply to all businesses when they are starting out or launching a new product. For example, do you choose a name that is the same as or very close to a trademark for some unrelated type of product, and argue that there will be no likelihood of confusion because the markets are so different? That might work, but it might also be a very expensive fight to win.
Trademark 101 suggests choosing a mark that is truly unique, fanciful, arbitrary and distinctive--one that doesn't have any descriptive powers at all. Think Kodak. Strong, easy to protect--saves money on litigation. But every dollar a company saves on litigation probably has to go to marketing in order to explain to customers that this unusual, non-descriptive name actually refers to a particular company's goods or services.
On the other hand, many small (and not-so-small) businesses want a trademark that tells their customers exactly what they are and what they're selling--the more descriptive the better. This might help customers find a business, but it can make it very hard to enforce trademark rights. Ultimately, a combination of a unique trademark and effective marketing is the best way to go.
So what about that band name of ours? Was it unique? Apparently we weren't the only legal jammers who thought that was a cool name--last Fall, the Minneapolis legal community hosted the Attractive Nuisance Tour. And, not surprisingly, the name promotes other goods and services, like the Attractive Nuisance blog.
Was our band name descriptive? Most of our "fans" would almost certainly describe us as a nuisance. And sometimes we did choose more description. When we couldn't get the whole band together for gigs, a smaller group of us would do "unplugged" shows under the also awesomely cool name "Acoustic Nuisance." Guess what? We weren't the only band to use that name, either.
Probably a good thing that we went on to other things (although . . . )
Pete Salsich III is an occasionally accomplished illustrator and relatively weak guitar player whose secret identity is that of an
Geoff Gerber keeps waiting for his superpowers to materialize. In the meantime, he uses his lawyer-powers to litigate intellectual property