The Band of Theseus


I’m a little troubled by truth in music bills, which would generally prohibit using the name of a musical group to advertise a concert not featuring any of the original members of that group. There are plenty of musical organizations whose membership changes organically over time. Making a fetish out of the original membership misses the point. Are concertgoers who see the New York Philharmonic being misled because there aren’t any “original” members still in the group? And what if the newer members are better? Any examples of bands that only became great after undergoing a near-total change in membership?


The article describes a law that the band must hold the legal trademark to the name OR have at least one original member. That seems much more sensible than just requiring an original member. If it’s really the same organization (like the New York Philharmonic) then it’ll almost certainly hold the trademark and be in compliance even if there are no original members; the issue seems to be concerts that are not connected to the original organization at all, with neither rights to the trademark nor original members.

But wouldn’t such a promotion already be illegal? If someone holds a trademark, than isn’t someone else claiming to be them and using that trademark, already infringement? Why would having an original member even help, if someone else holds the trademark? It didn’t help Prince - he wasn’t allowed to call himself Prince despite being the original Prince. I get the impression that this is really meant for cases where the trademark holder no longer exists. They can’t file lawsuits to enforce their trademark, so at present it seems wide open for anyone to pick up the name and represent themselves as the same band.

The issue is that trademark infringement hurts the public, not just the trademark holder, so there may be some value to enforcing trademarks even when the trademark holder doesn’t exist anymore.


According to the article, it would be legal to promote the group if there is at least one original member or if the new group holds the legal trademark to the group. Is filing official trademark registrations common? Or perhaps the wording is/could be such that any group with a common law trademark could advertise (i.e. if the band has been using that term in commerce, in that region, etc.) The trademark experts on this blog probably can be more precise.

But it might be better not to regulate this in the first place. Would it be ok to advertise if they disclosed that it was a copycat group, for example? I wonder if there’s a way to deal with the most egregious problems under existing laws.


See what happens when I start a comment and come back to it half an hour later… someone else beats me to the punch.

Matthew wrote:

The issue is that trademark infringement hurts the public, not just the trademark holder, so there may be some value to enforcing trademarks even when the trademark holder doesn’t exist anymore.

I might agree in this case, but not in the general case. If Apple went out of business and stopped making any products, should we prevent anyone else from making Apple computers for eternity? There are only so many phrases, which is why startups today have to have such ridiculous names like Meebo (or is that a Star Wars character?)