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Journal of Intellectual Property Law

Abstract

In the Internet era of music streaming services and search algorithms crafted to protect musicians and producers who can afford to pay for advertising, it has never been more difficult for independent artists to defend their trademarks (more specifically, in relation to the protection of their band names) against the giants of the music industry. Currently legislation protects these artists against trademark infringement under the Lanham Act and the common law. Unfortunately, these legal recourses do not adequately protect independent artists because these artists typically lack the legal or financial resources to defend their band name trademarks. Additionally, the nuances of the Internet and music streaming have allowed for the erasure of these artists to occur by favoring larger, money-making artists. This Note uses the ongoing Lady Antebellum case as a lens to illustrate how current legislation is not enough for independent artists to legally protect their band names when litigating against a famous artist who are supported by a profitable record label. The argument focuses on how common law rights for trademark infringement should be extended on a nationwide basis to put independent artists on equal playing field as artists backed by a record label with specific consideration for the fact that music is currently consumed almost entirely electronically.

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