Hello -

Joe Blow (really) wants to use a stage name on a
national/international level for performing and recording under.  The
stage name is the name of an existing geographical location on a map. 
The stage name is not federally registered by anyone else in the
trademark office.  It is, however, being used by an existing band in a
US state that seems to confine itself to local performance.  It is
also being used in a non-entertainment capacity by other companies.  A
check of allmusic.com shows that it doesn't seem as though any other
significantly visible performing entity is using the name.

Should Joe Blow attempt to contact the band before adapting the stage
name?  Or should he go ahead and use it anyway, filing a federal
servicemark for the name, and "deal with it later" if the band makes
an issue of it?  I.e., what is the most ethical and pragmatic approach
to this?  If the name is an existing and known geographical location
on a map (common word?), are their special provisions?

P.S. I realize that A) Google Answers is not a substitute for formal
legal advice, and B) a lawyer has the best answer to this, but thought
that someone might have some insight on here before taking that
avenue.

---

Clarification of Question by p1212-ga on 16 Oct 2003 18:31 PDT

Btw, that should be.. "are THERE special privileges"

The general rule in trademark law is, "first in time is first in
right."  Thus, if the other band has appropriated a name and is using
it as a service mark and IF the name Joe Blow wishes to appropriate is
indeed confusingly similar (a term of art in trademark law) to the
name the band has previously appropriated, then yes, the band, as the
"senior user" may have better rights to the mark and may be able to
stop the junior user (Joe Blow) from using the name in those
geographic areas of prior use.  This means that if the band has only
truly "used" (another term of art) the name in a tri-county area
around Milwaukee or something they could likely not preclude the
junior user's use (even if confusingly similar) in, e.g., Florida. 
Federal registration of the mark does not change the general
conclusion that the senior user may be able to enjoin the junior
registrant's use in those geographic areas of prior use.  But seeking
registration on these facts is problematic since registration requires
a declaration under penalty of perjury that the applicant has no
knowledge of current conflicting uses of the mark for which
registration is sought.

The foregoing assumes the band's name is a indeed a valid service mark
for their services; the mere fact it is also a geographic descriptor
does not render it invalid.  One could form a band and call it "Lake
Okeechobee" and have a valid common law (unregistered) right to the
mark as a service mark for musical services.

There is no reason Joe Blow could not appropriate the name and begin
using it, as long as he/she knows that he/she may have a problem using
the name in the senior user's areas of prior use.  There is no ethical
compulsion to contact the other user, in my opinion, as long as Joe
stays out of their "turf."

ipfan -

Thanks for the outstanding comment!