Trademark Your Name and Save Yourself a Headache
By Kyu Hee Chu
Reviewed By Cynthia Amis
One of the first things that an artist needs to do before embarking on his career is to come up with a unique name that he (or she) will use as a performer. Many simply use the name they were born with, while others come up with new distinctive names. Whatever the artist chooses as his stage name, he must remember to trademark that name from the outset if he wants to save himself from potential future headaches.
A Little Information About Trademarks.
What is a trademark? A trademark is “a word, name, or symbol that informs the public of the source of the goods being offered, and assures the public of the legitimacy and quality of the goods being offered.” An artist can trademark his stage name in two different ways – the first and probably the easier option is to register the name with the United States Patent and Trademark Office, which guarantees that nobody else will be able to use the registered name. The second option is a common law mark, which is created when an artist is the first to use the name in commerce and when this results in a “secondary meaning” being attached to the name. A secondary meaning is given to the name when the public associates the name with a certain source of goods.  Factors to consider when determining whether there is secondary meaning are: the amount and manner of advertising, the volume of sales, the length and manner of the name’s use, and whether consumers would be confused about the source of the goods. 
What Happens When You Fail to Trademark?
More than a few artists have had to deal with the problem of not having trademarked their stage names and have had to change their names after they had already become famous and established themselves as an artist. For example, according to IndieRnB.net, Common actually used to be “Common Sense,” while Soulja Boy Tell ‘Em actually was just “Soulja Boy,” and this is all because there were artists who had already trademarked these names, which prohibited Common Sense and Soulja Boy from continuing to use these names. 
Rick Ross Lawsuit I
A special case is that of Rick Ross. In 2010, Rick Ross the rapper, whose birth name is William Leonard Roberts II, was sued in the Southern District of California for trademark infringement in a $10 million lawsuit by “Freeway” Rick Ross, who claimed that Rick Ross, Jay-Z, Def Jam, and Universal Music Group had illegally profited off of his name. “Freeway” Rick Ross was a drug dealer who was convicted for selling cocaine in the mid 1980s to early 1990s. 
However, the court in the Southern District of California dismissed the case because “Freeway” Rick Ross could not demonstrate that he had established trademark for his name. First, although “Freeway” claimed that he had first used his name in commerce, the court found that commercial activity can only refer to legal activity, not to illegal activity such as drug dealing. Also, “secondary meaning” for his name could not be established because illegal activity cannot be used to establish secondary meaning. Second, “Freeway” had not registered his name with the United States Patent and Trademark Office. 
On the other hand, rapper Rick Ross has taken many steps to trademark his stage name. To start with, Rick Ross is the first to use the name in legal commerce. In addition, he has established “secondary meaning” – the amount of advertising under the stage name “Rick Ross” has been considerably large, he has sold millions of albums, he has had ownership of the trademarked name longer than anyone else, and there would be little, if any confusion of Rick Ross the rapper with “Freeway” Rick Ross. 
Rick Ross Lawsuit II
Nevertheless, “Freeway” has not given up just yet. With the help of new attorneys, he is going to California state court to sue the same parties plus maybe Warner Music Group. 
Will “Freeway” Rick Ross’ second attempt be successful? Rick Ross has taken several steps to trademark his stage name, while “Freeway” has not, which made it easier for the rapper to win in federal court. What is the lesson of this lawsuit? Well, from the first Rick Ross lawsuit, it is clear that an artist should always make sure their stage name is trademarked should they ever be sued for possible infringement. Will this continue to be the lesson after the outcome of the second lawsuit? We will have to wait and see.