1. What is the difference between name protection and trademark protection?
Name protection and trademark protection have different functions:
The name is used to identify a person to distinguish that person from other people. Name protection becomes relevant when an artist wants to prevent another artist from appearing under the same pseudonym and creating the risk of confusion.
The trademark is used to distinguish the goods and services of one company from those of another company. Trademark law becomes relevant, for example, when an artist wants to prevent another company from selling goods (e.g., merchandising items, such as T-shirts) under the artist’s protected trademark.
2. How does the name protection of artists and bands come about?
The legal basis for name protection is § 12 German Civil Code (BGB) and § 5 Trademark Act (MarkenG). § 12 BGB regulates the general protection of names under civil law. According to this, a name is a personal right. In the course of business, stage names and band names are protected as company identifiers according to § 5 MarkenG.
According to § 12 BGB and § 5 MarkenG, the protection of artist names (pseudonyms) and band names is generally created by mere use; registration is not required. However, there are some special features:
According to the case law of the Federal Court of Justice, stage names (pseudonyms) only gain protection if they have a reputation in the trade. This is the case if the artist is known to the public under the pseudonym, i.e., ultimately to the average consumer. If reputation is a given, even a mere first name (e.g., Adele, Cher) can then have name protection
In the case of band names, a reputation is generally not required. However, the names must be distinctive. They must not be generic terms (“The Rock Band”, “Blues Band”). However, such generic terms also become protectable as soon as the group has become known under the name and the name has gained popularity.
In terms of area, the protection extends in principle to the entire territory of Germany, unless in exceptional cases only local appearances take place without nationwide advertising or a reputation only exists locally. The protection ends with the cessation of use or – if a reputation is required for the protection – with the loss of this reputation.
3. What does the name protect?
According to § 12 BGB, the name is protected against name denial and name assumption. A name denial occurs when the artist is called by a false name by a third party. For example, artists can defend themselves against journalists who stubbornly misspell their names. A name assumption exists if another person uses the same name without authorization and thereby triggers confusion and violates the interests of the name bearer worthy of protection. A violation of interests generally requires a likelihood of confusion, but famous names are also protected from dilution by similar or identical names.
In accordance with § 15 MarkenG, company logos are protected in the course of business against confusion as well as unfair exploitation or impairment of their reputation without justifiable cause.
4. How does trademark protection come about?
According to § 4 MarkenG, the protection of a trademark arises either through the registration of a sign in the trademark register of the Trademark and Patent Office (DPMA), through use in the course of trade, insofar as the sign has acquired a reputation in the public domain, or – more relevant for foreign trademarks – through notorious reputation within the meaning of the Paris Convention.
Of particular interest is protection by registration. Here, the applicant can, for example, obtain trademark protection for a word mark (e.g., a name, such as “Rolling Stones”), a figurative mark (e.g., a logo, such as the “Rolling Stones tongue”), or a word and figurative mark (e.g., the name together with the logo). Protection is then granted for certain goods and services to be selected at the time of registration (e.g., records, clothing, musical performances). Registration is subject to a fee, and the costs increase with the scope of the classes of goods and services for which protection is sought.
Geographically, the protection of a German trademark extends to the territory of the Federal Republic of Germany. Artists who want trademark protection in other countries must also apply for trademark protection there. Within the EU, however, it is possible to apply for an EU trademark with effect for all member states of the European Union. The term of protection of a German trademark and an EU trademark is initially 10 years and can then be extended as often as desired for a further 10 years.
5. What protects the brand?
According to § 14 MarkenG, the trademark protects against another person using a sign identical to the trademark for identical goods or services, but also against use if there is a likelihood of confusion due to the identity or similarity of the signs and goods/services, or if the reputation of a well-known trademark is unfairly exploited or impaired without due cause.
6. Who owns the artist or band name?
In the case of artist names, i.e., pseudonyms of individual artists, the answer seems obvious: the right to the name belongs to the artist. However, one sometimes finds regulations in management contracts or exclusive artist contracts according to which the right to the artist’s name should belong to the manager or producer. These regulations are generally invalid because the right to a name is a personal right. It is non-transferable.
In the case of group names, further questions arise:
During the existence of the band, the question arises as to whether the right to the name is granted to all members of the group or only to individuals (e.g., the bandleader or singer). If there is no contract, the members of a band form a general partnership under civil law (so-called “GbR”). All members are then entitled to the right to the name together. In exceptional cases, however, the right to the name may also belong to the producer if it was the producer who put together the individual musicians, who did not know each other and were not already active as a group under this name, and then also carries out the group project with responsibility for its artistic and entrepreneurial direction.
The contract should also regulate the legal consequences of members leaving or dissolving the group.
If a band forms a partnership (GbR) and there are no contractual regulations governing it, the following applies:
If a member terminates its membership in the group, the group will be continued as a GbR by the remaining members (this is the effect of the new law of 1 January, 2024, which also applies to bands existing prior to that date, unless a member requested before the now expired deadline of 31 December 2024 that the GbR be continued under the old law). In that case, the right to the name remains with the GbR.
If a member terminates its membership and the GbR is subject to the old law, the GbR will be dissolved and the following applies:
In the case of unknown bands, whose name represents no economic value and who no longer exploit sound recordings, the name is then lost. It can then be used by everyone, not only the ex-members, but also third parties, for a new project. In the case of successful bands, the name represents an asset about which a dispute must take place. If the members cannot agree on the use of the name and possibly severance payments, no member may use the name. As long as the sound carriers continue to be exploited after dissolution (e.g., ABBA, Beatles), the name protection continues.
Clear contractual regulations are also recommended with regard to trademark rights. Sometimes it happens that only individual band members are registered as trademark owners and then there are later disputes about the ownership of rights and future use.
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