GET DOWN TO BUSINESS – PROTECT YOUR PERFORMER NAME!

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Pornstar Technology Lawyer

This article was originally published in the October 2019 issue of CamLife Magazine.

As a performer, your “stage name” is a major component of your brand.  It’s how clients search for you, recognize you (outside of your amazing looks!), and keeping coming back to find your content.  If another performer starts to use a similar name to yours, they may steal away valuable traffic, which, as you know, over time will add up to dollars being taken right out of your pocket.  Registering your performer name as a trademark can help you battle situations like those, and protect yourself from copycats.

In the porn/camming context, a performer name can be trademarked in relation to services (webcam entertainment services, online video clips, etc.) or goods (DVDs, merch, etc.).  A registration with the U.S. Patent & Trademark Office (USPTO) will give you the right to exclusive use of the mark throughout the entire United States.  Note that a federal trademark registration is different from a domain name registration or company name registration.  Domain name registrations and company name registrations serve important purposes, but are not a replacement for trademark registration.

Trademark registrations, with some exceptions, are awarded on a first come, first served basis.  So, it is important to file as soon as possible for your name.  This is especially true because if you’ve been using a name, and someone files for it before you, it can be a long, difficult, and expensive process to set the record straight.

This is an excellent time for performers to be thinking about protecting their names.  For decades, trademarks including sexually-explicit language or imagery were denied registration at the USPTO.  Repeatedly, trademarks of companies in the adult industry were rejected as banned for being “scandalous” or “immoral.”  However, that all changed this year when the U.S. Supreme Court struck down the ban as unconstitutional.  This is a massive win for the industry, but for performers to take advantage, they need to get up to speed on the basics of trademark selection, registration, and use.  I know the subject sounds dry, but hey, we can’t be wet all the time!

When developing your performer brand, a good starting point is a trademark search.  You will not be able to register a trademark that is confusingly similar in appearance or sound to trademarks previously registered by another performer or company for goods or services like yours.  A search will reveal any such issues, and you can make decisions on how to move forward based in the results.  Though it is not required, it’s helpful to have an attorney so that they can help you with the search process, results analysis, and application.

When you’re ready to move on to the filing stage, there are two types of trademark applications to be aware of – “use” and “intent-to-use.”  You’ll need to file a “use” based application, with proof of use, if you have already begun continuously selling goods or services using the mark prior to filing.  This applies, for example, when you’ve been camming for some time under the name for already.  Instead, if you want to “reserve the name” since you have not yet begun using the trademark at the time of filing, you’ll need to file an “intent-to-use” based application.  You can then certify use later.

Once the application is on file at the USPTO, a trademark examining attorney will review the application.  The review includes a search of USPTO records to check for confusingly similar prior-filed applications or registered trademarks.  The examining attorney will also evaluate the trademark for descriptiveness and generic-ness.  Generic marks are not registerable – They name the good or service by its true name.  For example, you cannot register “Apple” for apples since otherwise no one would be able to refer to the fruit without infringing on the trademark.  Descriptive marks describe an aspect of the goods or services to which they apply, and are only registerable in certain circumstances.  If there are any concerns, the examining attorney will issue a rejection to which you’ll have the opportunity to reply.

After the application is allowed at the USPTO, it gets published for opposition for 30 days in The Trademark Official Gazette.  This gives third parties (e.g., other performers) a chance to object to registration of your trademark if they believe it will harm them.  If an opposition is filed, an administrative procedure is initiated.  In most cases, an opposition does not occur, however, you do need to aware of the possibility.

Assuming there is no opposition, a registration will issue for your trademark.  The registration lasts indefinitely so long as proper declarations and renewals are filed at the appropriate times.  To keep the registration valid though, you’ll also need to continuously use the mark for the duration of the life of your registration.

Note that trademarks are national in scope.  This article has focused on the process and benefits of a registration in the United States.  If you have significant traffic from another area of the globe, or around the world, you’ll also want to consider registrations in other jurisdictions, but I’ll save that for another article in Cam Life on another day.  Check back….

A U.S. trademark registration for your performer name will help to deter others from stepping into the industry with a similar name.  However, if someone roguely infringes, you’ll be able to rely on the registration as a basis to sue in U.S. federal court, as evidence that the name is yours and only yours, and to show that the trademark is valid.  So, go get down to business – Protect the reputation you’re building in your name and get it registered!

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