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As an entertainment law firm, we deal with all kinds of different brands, companies, musicians, artists, painters, gamers, and you tubers. One thing they all have in common is that they're approaching this industry as a business. When building your name and your logo, you want to make sure that you are protected by getting a registration for your trademark. What we find is that there is a lot of confusion in regards to the difference between a state trademark and a federal trademark. In this article, we're going to discuss the difference between state and federal trademarks.

State Registrations. When talking about state registrations, you will file with the trademark office in your state, or the secretary of state’s. It's going to differ depending on where you live. Do your research. What is common is that there is going to be some sort of minimal filing fee. For example, in Arizona, the filing fee is $10 at the time of the writing of this Article, and the process is very fast (sometimes just a few days). The benefit of a state trademark registration is that now you have protection in the entirety of your state for your trademark.

Federal Registrations. When you file a federal registration, you are filing through the United States Patent and Trademark Office (USPTO). When we say federal, we mean nationwide. If you get a federal registration, you have protection in all of the states. Another thing that you have to keep in mind is that a federal registration trumps a state registration. Even if you have a state registration, if someone has priority over you and they have a federal registration, they're going to win.

Considering the Federal Registration Process. There are a couple of things to keep in mind. First of all, it takes monumentally longer to get through the federal process. At a minimum you're looking at 6-9 months, and that's an average. Some clients are going to run into some issues because other trademarks might come up that cause some concern for the attorney who is reviewing your application at the USPTO. If that happens, you have to duke it out to try and get that registration. At this point we hope that you actually have an attorney so you're able to get through that process a little bit easier. The main point of this being that you are still looking at 6-9 months, even in a best-case scenario. Because of this investment of time and money, you have to think carefully about what marks you want to register and go through this process for.

The Financial Side. For a Federal trademark registration, it is definitely a lot more expensive than the $10 or so for the State Registrations. For a Federal Registration, you will be looking at an average of $900-$1,200 upfront. This is going to be inclusive of all the attorney time and typically one to two filing fees. The filing fees are between $225-$275, depending on what you're registering your trademark for. There is a lot more consideration that goes into this when you want to file a registration.

Benefits in getting the Federal Registration. First, we discussed that it trumps a state registration. It also gives a presumption that you are, in fact, a valid owner. For example, if you have to enforce your trademark in a court of law, you now have a piece of paper that says you are the trademark owner. It makes things go a lot easier. We’ve also found that when we're doing things like takedown notices (online), it's very quick. We can get sometimes get online infringements taken down in a matter of hours as long as you have an actual trademark certificate and you have the underlying information needed to effectuate those takedowns. Other benefits will include the right to use the ® symbol. You can use that symbol in association with your trademark if you have the trademark registration. It acts as notice to the world that you are the owner of this registered trademark. Having a federal registration also helps if you are trying to get a foreign trademark. In this instance, your registration within the United States can be a basis for getting that foreign trademark. You will also be listed in the USPTO as a registered trademark owner, so it acts as constructive notice, meaning it puts the world on notice that you are the owner.

Cons of Federal Registration. You may not have the finances for the federal registration right out of the gate. Many up and coming artists, musicians, and business owners don’t have a lot of money to spend on a federal registration, but this is a process that you want to get started as early as possible. Know that it is okay to take a baby step in this process and go for the registration in your state first. You can always work your way towards that federal registration.

Trademark rights if you don't have a registration. Those rights are subject to common law trademark rights. It basically means that if you are actually using and regularly exploiting your mark, your symbol, your logo, etc., you are building a paper trail. This paper trail allows you to oppose a registration, and we’ve seen this happen. If someone was trying to register your mark and you caught wind of it, you have a right to oppose the registration, even if you don't have a registered mark through the USPTO. This has to do with common law rights. The law still protects you, and it comes through actual use of your mark. The sooner you start using your mark, the better.

Remember to always get an entertainment attorney or someone experienced with filing federal trademark applications through the USPTO. The website and the application are very complicated. If you make a mistake, it may cause your application to be rejected and you will lose all of that time and money so please try to get some help if you can.

Video: State v. Federal Trademarks

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Updated: Dec 31, 2019

The following is a transcript of a video, which can be seen here. Find all my videos at

You're ready to hire an entertainment attorney. Congratulations! That means you take yourself and your music career very seriously. That's the mindset you need to be in as we go through the steps that you need to keep in mind when looking to find the best entertainment attorney for you.

1. The First Step Is to Determine Qualifications. This cannot be said enough. Just because an attorney has a law degree does not mean that they know what to do in your situation, or that they are going to be able to offer the kind of representation that you need. Please keep this in mind. You need to understand that entertainment attorneys are just like anyone else in the industry in that, just because they are an “attorney,” “manager,” “agent,” or a “record label” does not mean that this person knows the best way to guide your music career. Not all attorneys are the right fit for you, so be as critical as you would be with any other team member or person that you work with. In addition, understand that sometimes you might find someone who represented some of the biggest acts in the industry, or someone that you look up to, this doesn’t guarantee that they can offer the right type of assistance for you now. What you need to question is, can they represent you? What are their qualifications? Are they currently in the industry? Are they negotiating deals right now with labels, distribution partners, publishing companies, and the kinds of companies and people that you are going to want to work with? You are going to want someone who has that real-world experience that they can bring to your career and benefit you. Your entertainment attorney is going to be your mentor, they are going to be advising you on what deals to take and what deals not to. Seek this out when looking to hire your entertainment attorney.

2. You Want An Entertainment Attorney Who Cares About You. You want someone that is truly going to care about you and your music career. You don't want an attorney who's only doing this because they are a hired gun. You don’t want to hire an attorney solely because they have a fantastic resume and you think you're going to get a certain type of service. The reality is, you need an attorney who is really invested in you and your career and wants to see you succeed.

3. Trust Your Gut! Remember that attorneys are hired guns, so you can terminate the relationship at any point. If it’s not working out, fire your attorney. Understand that the relationship with you and your attorney is a collaborative process. You're supposed to have an entertainment attorney who's going to help advise you, mentor you, and give you business direction. If you see any red flags, take the time to think it through and remember you can fire your attorney if you need to.

4. Let's Talk Attorney’s Fees. The range of attorney’s fees varies pretty widely depending on geography, meaning where you live and what the standard rates for attorneys are in that area. You will want to do some research if you're just getting started. Find a couple of different entertainment attorneys in your area and get some price quotes to see what the average pricing is. From there, you can decide whether it makes sense to move forward. Entertainment attorneys have different types of fee structures. Sometimes they will do hourly rates, so you just pay for the actual time spent on a matter. They can also offer hybrid rates as well, so you have hourly, but a portion of the work will be flat feed and/or contingency. Entertainment attorneys want to make sure that you are protected. Ask those questions regarding fees and fee structures ahead of time to help avoid surprises. Attorneys can be pretty pricey, so that's why you want to do your research and find someone that's going to be competitive, but also be able to keep costs low for you without sacrificing quality. Quality is really important, please make the investment. It's all about investing in yourself, your career and being able to set yourself up for success. Focus on the good stuff in your career and leave all the messy stuff to the entertainment attorney. Make sure you find someone that you trust so that you stay protected every step of the way.

5. Longevity of Relationship. Just like with family, friends, and business associates, you want to make sure that you are cultivating the relationship with your attorney, because it can lead to additional benefits. If you find your ideal attorney, someone who has your back, who is going to fight for you, knows what opportunities that are best for you, and is willing to mentor you, you’ve struck gold. You've found the right person and you want to stick with that person for as long as possible, and it’s going to make a difference in the overall direction of your career because you have a mentor who's been with you for a while. Let's switch gears and talk about you as a client and what behaviors are going to help you to reinforce and strengthen your attorney-client relationship. Setting expectations, exercising good communication, being respectful of time, and understanding the fact that your attorney probably has a pretty massive caseload are all things to keep in mind. If you're an easy client to work with, and your attorney likes you and what you're doing, the attorney is probably going to invest a little bit more into you, and that’s never a bad thing.

6. Bonus tip! Don't lie to your attorney! Don't conveniently leave out important information regarding your legal matter. It might be a little embarrassing, but the whole point of your attorney is to protect you and advocate for you. Your attorney cannot do that if you're undermining his or her ability to know everything that's happening. Remember, you have attorney-client privilege, and you specifically hold that privilege (meaning your attorney cannot divulge any information unless you say so). There is a reason that these protections are in place, it’s so clients can freely discuss things with their attorneys. The more open you are, the more your attorney will trust you and be able to protect you. Tell your attorney everything!

These are some things to keep in mind when you are in the process of choosing an entertainment attorney. Get an entertainment attorney to work with you and to look at your most important contracts, your record label deals, your management deals, and your licensing agreements. These are the people on your team that are going to keep you from entering into bad deals.

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Updated: Dec 31, 2019

Someone called my office this week and asked a great question. They asked, why does a band need an LLC? (Limited Liability Company) This is a great question and it's something that there seems to be a lot of misunderstanding about. The first thing I want to do is make sure you understand what an LLC is. When I say LLC, I’m talking about a real company that is registered with the state where you live. Creating an LLC is one of the first things you need to do when you are starting out in your music career. Here are three reasons why creating an LLC is one of the first things you should do when you are starting out in your music career.

1. The first reason why you, your band, whatever it is that you’re trying to protect needs an LLC is because it creates a liability shield. When I say liability shield, I’m talking about something that acts as a barrier for you, or your band. If, for example, something happens and someone has a claim, or an issue with you. Instead of having the claim directly against you as an individual, you have a limited liability company, or an LLC, to protect you and what you’re doing.

2. The second reason why you need an LLC is because, it’s just a good business practice. You’ll find as you go throughout your career that you might want to set up a couple of different LLC’s. You can create an LLC that acts as the company that you put all of your merchandising efforts into. Every time you make a contract for your merchandise endeavors, you do it on behalf of that LLC. Maybe you do another LLC that’s just for your music releases. Of course, you can always just create one singular LLC. An LLC that operates as the main functioning company for the majority of your music career.

3. The third reason why you want to start an LLC is because it makes you risk adverse. Having an LLC means that you now have a company protecting you. If your company gets sued and you lose, you get what’s called a judgement. If someone has a judgment against you, and it’s happens to be more than your company can pay, the LLC can go bankrupt. The difference ends up being that instead of you personally having to go through bankruptcy, only your LLC goes bankrupt. This takes us back to the original tip of creating a liability shield around you. It’s a lot harder to bounce back from personal bankruptcy than it would be for your LLC. The sooner that you can set up and LLC, the better. Just remember to actually use it. When you sign your contracts, sign your contracts on behalf of your company rather than your name individually. Keep yourself and your career safe behind your SHIELD of protection!

These three reasons are good, prudent steps to take to keep yourself protected, your band protected, and most importantly, to keep your fans protected. Now that you know the three important reasons why you need to set up an LLC, you can rest assured that you have now taken a big step towards really keeping yourself protected. Create your LLC and get going today.

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