Recently, the following question was posed to me through the site: I am currently aware of a website that is selling products, for example t-shirts, that include the name of a band I represent. This company does not have permission to be using this bands name, or selling any products containing their name. If the band would like to settle this issue without filing a lawsuit, what would be the best way of dealing with this matter?
Answer: Generally, band names are in the arena of trademark law as opposed to right of publicity. Now, some personalities are so identifiable with their band name that an infringement of the band name can be purused as an infringement of the band member’s right of publicity (e.g., The Rolling Stones and Mick Jagger). If the t-shirts includes images of the band members, then conceivably, each band member could have a right of publicity claim as well as a trademark infringement claim. The best way of dealing with this, all things being equal, is to issue a cease and desist letter. A general statement of the activity that is offending the intellectual property rights of the band will suffice. It’s also a good idea to state specifically in the letter that the recipient has a certain amount of time to respond in writing, and that the letter is issued without prejudice to the rights of the band to pursue the claim if need be. I hope this is helpful.
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