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July 17th, 2007

Drowning Pool vs Drowning Pool, a lesson in band names/trademarks

Our good buddy Jordan of Pastepunk was kind enough to put together the following post regarding band names and their trademarks. Very interesting. Thanks Jordan.

Here’s a good lesson for bands and their names - if you break up or change your band name and stop using the old name for a few years and some other band comes along many years later and uses the same name and then suddenly becomes famous, you better be prepared to show there are present active uses of the old band name in a commercial context before arguing that the latter band is infringing your trademark.

A defunct 80s band named Drowning Pool applied for a trademark in 2001 around the time the currently-active metal band Drowning Pool were exploding on the radio. At the time of filing, the metal band had not yet filed a trademark application. At an appropriate time in the proceeding, the metal band filed a petition opposing the earlier band’s application. After several years of litigation, the metal band recently won its Opposition on the basis that the earlier band abandoned use of the name Drowning Pool. The earlier band had only scant evidence that there was any activity with the band name after the year 1990, which was the year they changed their name to the Mumbles.

The decision on this is below and although it’s a bit of a dry read, there’s a lot of discussion of band name goodwill and how a band may be able to keep their common law rights in their name long after they break up or change their name (assuming they don’t have an active federal registration, which most don’t). One of the emerging themes was that if a band has its music readily available via digital distribution, it is much harder to say that the band has “abandoned” their name, even if they’re relatively obscure and do not play live.
Drowning Pool LLC vs Drowning Pool

Written by Virgil Dickerson