By Dennis S. Prahl [1].

Almost everyone in the music industry, whether performing artists, record companies, performing rights societies, etc., has a name under which they perform or conduct business. Such a name may be a trademark that can be protected and enforced and can generate significant income beyond the core business. Generally, a trademark is any "word, name, symbol or device or any combination thereof used ... to identify and distinguish ... [one party’s] goods ... from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown." [2] Many symbols in the music industry function as trademarks, such as the name of an artist or musical group, the name of a radio program, the name of a record company, etc. The name of a record production company may function as a trademark when the name is used in connection with the recordings on sale to the public. The name of a musician or musical group may function as a service mark when used in connection with live performances or composing music for others, or may, under certain conditions, function as a trademark when used on the musician's or group's recordings or even when used on t-shirts and posters. Even a musical composition may serve as a trademark, although a recent decision has held that the performance of such a composition by a particular person or group may not. [3]

In the United States, trademark rights generally arise from use of a trademark, although trademark rights may also emerge where a party with a bona fide intention to use the trademark, applies to register the mark and commences use within a reasonable period of time. Trademark rights are territorial, either existing in the territory in which they have been used ( e.g., the area surrounding Los Angeles) or throughout the territory in which they have been registered ( e.g., a trademark registered on the United States Federal Trademark Register will be valid throughout the entire territory of the United States). Today, the territorial rights arising from registration are valid within national borders, but not generally beyond them. Therefore, a trademark registration in the United States does not provide trademark rights in Canada. Moreover, contrary to the United States, where trademark rights may arise from mere use, in most other countries trademark rights usually arise from national registration, not use.

A common misconception should be clarified: neither the mere incorporation in a state, nor the filing of an assumed name or D.B.A. with a state or local authority, provides any substantive trademark or service mark rights or provides any defense to a claim for infringement by a party with senior rights. For example, simply because one can incorporate Hootie & The Blowfish, Inc. under the laws of Idaho does not mean that such incorporation provides any rights to defend an objection by Hootie & The Blowfish.