JPF Home Page Forums General Messages Mentor Questions Forum Name Confusion/ Name Trademark

Something that I discovered today has me a little concerned. It may not be anything to worry about, but I do worry about legal problems that I never thought about before.

I've had a CD out on CD Baby for six years now. The cover art is a simple photo if me standing with my arms folded in front of a building that was destroyed in a hurricane.

My name is spelled Ben Willis. Recently a guy named Benn (two n's) Willis submitted a CD to CD Baby. No problem so it seems, two guys with the same name spelled differently.

Here's the problem. CD Baby took down my artwork or album cover and replaced it with Benn Willis's album cover. The link goes to my music but the artwork is not mine. I have several links on different websites to my album and they all show the other Benn Willis album cover. I called CD Baby twice, they acknowledged the mistake and promised to put my original album cover back up.

I've never seen a need to trademark my name and can't imagine the hassle involved and no way in hell can I afford to do it. I can only wait and see if CD Baby does as they promise.

Just want to make this problem known to avoid a copywrite problem with the other Benn.

The problem might be resolved by the time I get a response here, but I believe the subject is relevent and should be discussed.

Hi Ben:

It can be a real problem. There must be at least a dozen Dave Rice's all involved in various aspects of music... most are performers. I've had to start using my full name just to keep from causing confusion. Drat... and I thought I was unique... LOL!

I hope you've resolved the problem with CDBaby. They just don't seem to be the same up there in Portland anymore... after the spin-off/sale to DiskMakers.

I agree Dave, I have noticed a drop in service and satisfaction lately. They made a few mistakes on me, I informed them and they were corrected, all but one. They encoded one of my CDs and short changed two of the songs, putting up less than the full song, I found out about it when a customer down loaded the CD and ended up with two shortened songs on it. I informed CD Baby and they said they would fix the problem and give another down load to the customer free of charge. The last time I checked with the customer, it had not happened. I told her to go back again and let me know if she got satifaction. This is a good customer who has bought about 9 or 10 of my CDs through CD Baby, so I want to keep her happy, so should CD Baby.

I know anyone can make a mistake, but it should be corrected as soon as possible.

It's been over 24 hours now since I first contacted CD Baby, and the other album cover is still there. That's not my album cover and I didn't put it there.

To be honest, I haven't made any money from CD Baby since Diskmakers took it over. I may have to resign and ask for my CD's back. What would happen in this case? They have my music on some 50 web sites for download. Will they continue to collect the money (if any) and not pay me because I dropped them?

Wake up Stu.

I use my middle name, Edward, because kevinrose.com was already taken by another Kevin Rose, the guy who started digg.com. I have to admit that I was surprised when I googled myself and found that Business Week listed me as one of the 25 most influential people on the web.

I use my middle initial because someone at a Rent-to-Own company in Marion, Ohio wanted to know if I was the same Gary Andrews who rented an engagement ring and then disappeared.

I told them, "I didn't even know you COULD rent an engagement ring! And, I'm pretty sure, if SHE finds out about it, you CAN'T!"

So, I use Gary E. Andrews in hopes it will distinguish me from this guy, for legal reasons, to keep my good name in commerce, and to avoid the wrath of the fiance' who may come looking for the other guy with a baseball bat. www.garyeandrews.com

I've trademarked my "nickname" and my company name, and I also work with my real full name just in case any of this problem may happen. It's advisable to register your "name" too, but I think that if it's your legal name, they can't tell you to put it out when it comes to copyright and author credit

Hey Ben,

Any word yet today? Keep us posted on this. I would imagine that CDBaby wants to resolve things like this fairly quickly.

Mike

Mike, I just checked. The other guy's album cover is still there. I'll have to call them back today.

Just got a call back from CD Baby. They said that they are re-scanning my original album cover and that it should be up by tomorrow. I can't imagine how this happened in the first place. The names are spelled differently, both albums have different titles and songs. I thought that they would have resolved this two days ago when I first called. I had to call back today and explain the whole thing over again. I'll still give them the benefit of the doubt until tomorrow.

Thanks Ben, interesting.

Still not resolved. What more can I do after phone calls don't work?

Sorry to hear you are having this problem Ben. I think it might be more of a problem than people think.
MY name, Bill Robinson, is so famous just about everyone has heard the name.
Bill Bojangles Robinson of course.

Heck they even wrote a song about the guy.

My songs on some of the download sites are listed with his and I tried a long time ago to get it resolved. They are still listed together.
I thought what the heck if it helps my sales I might benefit from it. It didn't. I still don't sell anything, LOL

Maybe I shoulda used my childhood nick. Pooky Robinson

Thanks Pooky, The prevailing problem is not of my making regardless of name similarity.

CD Baby put the other "Benn" Willis's album cover on my page after six years of having my original art work. A major mistake. It shouldn't be hard to resolve. I wish Stu was around for advice.

Hi Ben

is this the link

http://www.cdbaby.com/Artist/BenWillis

If it is, I see your cd as the image... ‘The Lighter Side of Poverty’


If you still see the other guys. This happened to me once elsewhere and I found that I was looking at my cache on my temp folder.

When I emptied my temp Internet folder, and done a refresh, the new image appeared.

God Bless Roy

Roy is right Ben.
I just looked and it is you standing in front of a wrecked building.

Try dumping all your temps and cookies.

Now they have both covers up. The one on the left is not mine.

It's ok for me Ben.

I dunno Ben
I just checked it again and I only see one.
The larger one in the left column and a smaller one above the "VIEW" button.
Both are you.

did you clear all your history, temp files including offline content, and cookies?

Thanks Roy and Bill. I cleand up the computer and it looks like they fixed it.

Wonderful personalized service. This is somewhat frustrating. Is it worth the effort to use a unique trademarkTM name?

Ben,

I had a similar situation when I moved to Nashville. Almost everywhere I went in the industry, a lot of people said "You do know there is another Mark Barnett don't you? They always had this kind of snide look to them when they said it. One record company would not even answer my phone calls, even though they knew me. They didn't want phone calls from the other guy.

As it turned out, he had been in town about ten years before me but had never really broken through. He was well known as a tremendous banjo player and bluegrass guy, but less than adequate singer, or writer. He had been on a National television show a few times and was fairly well known for that.

One night I did that same television show and the emcee, Ralph Emery, kind of the Johnny Carson of the country music industry, asked me about it. We did the name thing.

The next day the original called me on the phone and we met at a resturant. He advised me that I better change my name. It was kind of like the shoot out scene in a Western movie. I decided he was right because he had done enough damage to the name. So I used my full name and changed the spelling a bit, from "Mark Barnett" to "Marc-Alan Barnette." The hyphen was an idea from a producer and has served me well over the years.

Sometimes it might not be right, but changing your name subtely might alieviate confusion in an easier way. What ever you can do to clear up confusion usually pays off in the long run.

MAB

Not in my case. From what I hear, it can be pretty expensive.

Thanks Marc, the other guy spells his name Benn. That may be because I was at CD Baby first and he didn't want the confusion either. There are a couple of my namesakes actively on the web but I still rank number 1 in the search engines for my name.

Just to add to the concern - be aware that Trademark trumps domain name. In other words, you can spend lots of time, energy, and resources building up your website and then someone else who gets a trademark can take your domain name away. If you're serious about using the net to promote and sell your music, get the trademark.

Thanks Stu, was hoping that you would chime in, though it's not what a poor musician wanted to hear. Are you saying that someone with a trade mark can take you're URL, Or do you have to change it? Changing the URL would wipe you off the search engines and you would have to start over.

Both - They can register it, and you have to start over with something else

Here is the link to the trademark section of the US Copyright Office. Within the text you will find a link to a search engine you can use to see if your name has been already trademarked by someone else.

http://www.uspto.gov/web/trademarks/workflow/start.htm

Different in Canada Stu


First to use the trade mark owns it under common law, much like copyright.

If you can prove you had it first, you don't have to give it up at all...in fact, you would have had the opportunity to oppose registration of that second mark in the first instance if you thought their mark would cause confusion in the market place.

Of course we are talking simply names. Associated images\market use\geograpical coverage etc are as important.

Here's an example. I operate a few websites, among the www.taxboard.ca. I have for a few years now. I have not registered it as a trade mark.

At this point, anyone who goes through the registration process must do a search, as does our Intellectual Property Office. If CIPO is doing its job, they will find "Taxboard" and it is pretty clear we are a Canadian tax resource for tax professionals.

So should an applicant want to register that name for anything closely associated with what we do, registration would be denied....even though my Taxboard is not a registered trade mark.

There are of course exceptions. Site rights can be taken away if it causes confusion with an existing name or business. There's no way I could, for example, keep tigerwoods.ca if Tiger wanted it (assuming it had anything to do with golf...if it was a kiddy playland and made no mention of Tiger, it would likely be fine) ...though I could have kept mcDonalds.ca as long as I wasn't trying to sell hamburgers. Different for unique\made up names. No way I could keep xerox. ca, for example.

The key question here is "will it cause confusion in the minds of the public"....which also leads to the concept of strong marks (made up names like xerox) and weak marks (The Guitar Place). Strong marks receive far wider protection than do weak marks.