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  4.  » Naming rights: When is identity considered intellectual property?

Naming rights: When is identity considered intellectual property?

| Feb 29, 2012 | Intellectual Property |

Most artists are well aware that it’s illegal to copy the work of another artist and claim it as their own. But what are the limits when it comes to the identity of the artists themselves? Can two artists share the same name, or is what we call ourselves considered intellectual property?

The answer isn’t exactly cut-and-dry. Take the lawsuit filed by country-rock singer Keith Urban against a Wayne, New Jersey-based artist named Keith Urban, who launched a website, KeithUrban.com, to show off his artwork. Although the singer has his own site, KeithUrban.net, he accused the painter of trademark infringement, dilution of a federally registered trademark, federal unfair competition and violation of the Anticybersquatting Consumer Protection Act and the Tennessee Consumer Protection Act.

The lawsuit was settled in the painter’s favor, but made other artists wonder whether names are ever protected under trademark laws. Trademarks are distinctive symbols, words or pictures used to distinguish and identify the origin of an owner’s products. Trademarks that consumers identify with certain products or services are said to have acquired a “secondary meaning.”

Let’s say you’re a singer who wants to earn money by performing live. Let’s also suppose your name happens to be Paul McCartney. You might wonder if you can use your own name for any websites or other means of promoting yourself, since it also belongs to another singer who has enjoyed a bit of fame and success. The answer: The lead singer of the Beatles can’t prevent you from using your own name.

What you can’t do is get your friends together and perform under the name The Beatles, as there’s a very clear notion of who makes up that group. You’re also on legal thin ice if you change your name to Paul McCartney, because it’s easily arguable that you’re simply trying to profit off the original singer’s name.

The same principle applies to the domain names of websites if it’s unclear whether a relationship exists between the site and the famous person it’s named after. Registering or using a domain name with the bad-faith intent to profit from a trademark belonging to someone else is called cybersquatting. Usually a cybersquatter offers to sell the domain at an exorbitant price to the person or company who owns the trademark. A 1999 federal statute made this illegal, and unlike Keith Urban’s lawsuit, people who sue cybersquatters are usually successful.

Source: The Huffington Post, “Q. What’s In a Name? A. Your Artistic Identity,” Daniel Grant, Feb. 9, 2012

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