Names Are Important
Your band or artist name is clearly a very important asset for your musical career. Not only does it form an integral part of your image but it’ll also be a central part of your musical reputation. Without it, fans, labels and promoters may not recognise you. In short, your name is part of your "brand" in the same way it is for any other product. It can take a lot of time, money and effort to rebuild a reputation after a name change.

The music industry, particularly in Western Australia, is literally littered with cases of bands being forced to change their name because someone else already has it, or uses it later but gets more exposure faster. In other cases, disputes between band members have meant a band name is unusable, despite the band continuing with a new line up.

So, how do you protect your band name? Even if you have the most wacky, weird-ass, off-beat or, er, “unusual” name, how do you make sure no-one out there borrows it?

Check No-one Else Has Your Name
The first step is to do what you can to make sure no-one else already has a name you wanna use, either in Perth, the rest of Australia or the world. The w-w-web provides a very effective mechanism for searching info about bands and artists, especially with a good search engine. Alternatively, there are several web-based "band name registries", like www.bandname.com or www.bandreg.com but although it may go some way to showing you have prior use of a name, these are not legally binding on anyone who doesn’t also register a band name. If you do want to go a step further, you can search various regulatory databases or registers mentioned below, but these might also incur a search fee, and you would need to do it in each state, county or nation.

So picking a name can be a bit of a punt. You can do as much research as you like and still miss something. The best you can do is settle on a good name and try to protect it.

Once you have a name you're happy with, there are three ways to protect it: register a business name, register a trade mark or establish a strong reputation in the name– after all, could anyone seriously get away with calling a band The Beatles? Well, maybe…

Registering a Business Name
Registering your band name as a “business name” will give you limited protection for your name. What it will do is give you a legal right to "carry on business" as a band or artist using that name. In Western Australia (and many other Australian states), if you want to carry on a business using a name other than your own legal name, you need to register the name as a business name. A “registered business name” is nothing more than a name you have the legal right to use, and is not a separate "company" or legal entity in its own right. The person registered as the holder of the business name will still carry on the business, just using the registered name. However, the benefit is that they get the sole right to conduct business under that name, or any very similar name - meaning that no-one else can register a business name that is the same as yours.

The catch is that registering a business name requires payment of registration fees and a renewal fee every 3 years, and only gives you rights within the State you register the name in. It also doesn't of itself give you the right to prevent anybody else using your same or a similar name. But, it may be a useful piece of ammunition in your argument that you have a well established reputation in your band name, as discussed below.

More info about registering business names is available from the WA Department of Consumer and Employment Protection or other State's departments referred to below.

A free "name check" for business names or company names is available from DOCEP or the Australian Securities and Investments Commission National Names Index, but this will not include names not registered as business names or company names, such as trade marks, and gives you only limited information about the holders of the name. You’ll most likely need to do a further search, with a search fee, to find out more info.

So, registering a business name is useful - or essential if you want to carry on business under than name - but it won’t really help you protect your name. A trade mark might.

Registering a Trade Mark
A better way of protecting your name, and obtaining an exclusive right to use it, is to register the name as a “trade mark”. This will go further than a business name, in that it will prevent others from using the name in a similar business to yours. Trade marks are registered in distinct categories of goods or services to which they apply – bands generally fall within services category 41 "entertainment" or "cultural activities", but you may also want to include other services or goods, such as t-shirts, that you might want to use your band name on. Your rights will apply throughout Australia, and can be extended to other countries or worldwide, but the processes are detailed and costly.

In terse terms, you’d wanna be serious before you register your name as a trade mark.

General information on trade marks is available from the Federal government agency IP Australia, or professional advice is available from “patent or trade mark attorneys”.

Establishing a Reputation
If you have already established a strong reputation under your band or artist name, it is going to be a lot harder for someone else to "borrow" your name, or keep using it if they claim they came up with it themselves (yeah, right!) - by the sheer weight of your reputation and the fact that any confusion between the two bands is likely to work in your favour. The ways to do this are obvious – gigging relentlessly around the state, country or world, getting regular state, national or overseas airplay, having a strong street press, magazine or web presence (with or without the help of a label) and whatever else you can think of to let audiences know you are your name. Easy, right?

Hey, you can even hang out on street corners handing out flyers if you think it’ll help.

At a practical level, if you can show your rival name-users that you already have a big rack-off reputation, they may be more likely to back-off to change their name for their own sake. If they persist, then you may even be able to take legal action to stop them.

You could take action in one of two ways. First, under the Federal Trade Practices Act (or very similar Western Australian Fair Trading Act and acts in other states), you can prevent others from engaging in “misleading and deceptive conduct” in their business. Namely, that they’re trying to confuse both of your fans, to cash in on your reputation. Second, you could sue them using the “tort” of passing off, which prevents one person from suggesting their goods or services are, or are related to, those of somebody else. This might not help you if they’re simply using the same name without bad intentions.

But, before taking legal action against a band in these ways, you’d need legal advice.

Further Information
Government agencies responsible for business names in states outside Western Australia:

SA: Office of Consumer and Business Affairs, South Australia
VIC: Consumer Affairs, Victoria
NSW: New South Wales Office of Fair Trading
TAS: Consumer Affairs and Fair Trading, Tasmania
QLD: Department of Tourism, Racing and Fair Trading, Queensland
ACT: Business ACT, Australian Capital Territory
NT: Department of Justice, Northern Territory

Useful band names info from the very kind folk at the Arts Law Centre of Australia:
Legal Information - Band names
Legal Information - Trade Marks

Another good summary is available from the Australasian Performing Rights Association: Band Names, can they be protected?

General information of protecting your band name in the United States of America:
Michael P. McCready, Attorney at Law NOTE THIS IS BASED ON USA LAW.

Names Are Important
Your band or artist name is clearly a very important asset for your musical career. Not only does it form an integral part of your image but it’ll also be a central part of your musical reputation. Without it, fans, labels and promoters may not recognise you. In short, your name is part of your "brand" in the same way it is for any other product. It can take a lot of time, money and effort to rebuild a reputation after a name change.

The music industry, particularly in Western Australia, is literally littered with cases of bands being forced to change their name because someone else already has it, or uses it later but gets more exposure faster. In other cases, disputes between band members have meant a band name is unusable, despite the band continuing with a new line up.

So, how do you protect your band name? Even if you have the most wacky, weird-ass, off-beat or, er, “unusual” name, how do you make sure no-one out there borrows it?

Check No-one Else Has Your Name
The first step is to do what you can to make sure no-one else already has a name you wanna use, either in Perth, the rest of Australia or the world. The w-w-web provides a very effective mechanism for searching info about bands and artists, especially with a good search engine. Alternatively, there are several web-based "band name registries", like www.bandname.com or www.bandreg.com but although it may go some way to showing you have prior use of a name, these are not legally binding on anyone who doesn’t also register a band name. If you do want to go a step further, you can search various regulatory databases or registers mentioned below, but these might also incur a search fee, and you would need to do it in each state, county or nation.

So picking a name can be a bit of a punt. You can do as much research as you like and still miss something. The best you can do is settle on a good name and try to protect it.

Once you have a name you're happy with, there are three ways to protect it: register a business name, register a trade mark or establish a strong reputation in the name– after all, could anyone seriously get away with calling a band The Beatles? Well, maybe…

Registering a Business Name
Registering your band name as a “business name” will give you limited protection for your name. What it will do is give you a legal right to "carry on business" as a band or artist using that name. In Western Australia (and many other Australian states), if you want to carry on a business using a name other than your own legal name, you need to register the name as a business name. A “registered business name” is nothing more than a name you have the legal right to use, and is not a separate "company" or legal entity in its own right. The person registered as the holder of the business name will still carry on the business, just using the registered name. However, the benefit is that they get the sole right to conduct business under that name, or any very similar name - meaning that no-one else can register a business name that is the same as yours.

The catch is that registering a business name requires payment of registration fees and a renewal fee every 3 years, and only gives you rights within the State you register the name in. It also doesn't of itself give you the right to prevent anybody else using your same or a similar name. But, it may be a useful piece of ammunition in your argument that you have a well established reputation in your band name, as discussed below.

More info about registering business names is available from the WA Department of Consumer and Employment Protection or other State's departments referred to below.

A free "name check" for business names or company names is available from DOCEP or the Australian Securities and Investments Commission National Names Index, but this will not include names not registered as business names or company names, such as trade marks, and gives you only limited information about the holders of the name. You’ll most likely need to do a further search, with a search fee, to find out more info.

So, registering a business name is useful - or essential if you want to carry on business under than name - but it won’t really help you protect your name. A trade mark might.

Registering a Trade Mark
A better way of protecting your name, and obtaining an exclusive right to use it, is to register the name as a “trade mark”. This will go further than a business name, in that it will prevent others from using the name in a similar business to yours. Trade marks are registered in distinct categories of goods or services to which they apply – bands generally fall within services category 41 "entertainment" or "cultural activities", but you may also want to include other services or goods, such as t-shirts, that you might want to use your band name on. Your rights will apply throughout Australia, and can be extended to other countries or worldwide, but the processes are detailed and costly.

In terse terms, you’d wanna be serious before you register your name as a trade mark.

General information on trade marks is available from the Federal government agency IP Australia, or professional advice is available from “patent or trade mark attorneys”.

Establishing a Reputation
If you have already established a strong reputation under your band or artist name, it is going to be a lot harder for someone else to "borrow" your name, or keep using it if they claim they came up with it themselves (yeah, right!) - by the sheer weight of your reputation and the fact that any confusion between the two bands is likely to work in your favour. The ways to do this are obvious – gigging relentlessly around the state, country or world, getting regular state, national or overseas airplay, having a strong street press, magazine or web presence (with or without the help of a label) and whatever else you can think of to let audiences know you are your name. Easy, right?

Hey, you can even hang out on street corners handing out flyers if you think it’ll help.

At a practical level, if you can show your rival name-users that you already have a big rack-off reputation, they may be more likely to back-off to change their name for their own sake. If they persist, then you may even be able to take legal action to stop them.

You could take action in one of two ways. First, under the Federal Trade Practices Act (or very similar Western Australian Fair Trading Act and acts in other states), you can prevent others from engaging in “misleading and deceptive conduct” in their business. Namely, that they’re trying to confuse both of your fans, to cash in on your reputation. Second, you could sue them using the “tort” of passing off, which prevents one person from suggesting their goods or services are, or are related to, those of somebody else. This might not help you if they’re simply using the same name without bad intentions.

But, before taking legal action against a band in these ways, you’d need legal advice.

Further Information
Government agencies responsible for business names in states outside Western Australia:

SA: Office of Consumer and Business Affairs, South Australia
VIC: Consumer Affairs, Victoria
NSW: New South Wales Office of Fair Trading
TAS: Consumer Affairs and Fair Trading, Tasmania
QLD: Department of Tourism, Racing and Fair Trading, Queensland
ACT: Business ACT, Australian Capital Territory
NT: Department of Justice, Northern Territory

Useful band names info from the very kind folk at the Arts Law Centre of Australia:
Legal Information - Band names
Legal Information - Trade Marks

Another good summary is available from the Australasian Performing Rights Association: Band Names, can they be protected?

General information of protecting your band name in the United States of America:
Michael P. McCready, Attorney at Law NOTE THIS IS BASED ON USA LAW.