This week, I did something I never dreamed I'd have to do:
I filed an application with the Washington Secretary of State's Office to register my name as an official trademark.
That's right. A trademark, as in that obnoxious little ``TM'' you see after the names of products like the butterfly symbol that is part of Microsoft's MSN logo or Brach's Rainbow Bears (TM) jelly candies.
To do it, I had to fill out a form that asked me questions such as ``Describe the trademark as it is to be registered (if necessary, attach additional information),'' and ``Describe the exact manner in which the trademark is used.'' I also had to enclose a $50 check and ``three samples of the trademark, including one original, as it is to be registered.''
Now you might be wondering why I went to all this trouble to trademark a name when it was something that was given to me at birth by my parents (OK, technically, Clayton is my middle name, but it's what I've gone by since I was a kid to avoid being confused with my Dad, whose first name is also Kenneth).
Answer: Because I have come to the realization that trademarking ``Clayton Park'' is the best way to ensure my rights to be able to continue to use my name, particularly when playing music, which, when I am not busy committing acts of journalism, is what I have enjoyed doing since my college days in the early '80s. I am a singer-songwriter who plays guitar and electric violin.
On Monday, I got the shock of my life when I learned I was no longer the only musician around these parts known as Clayton Park.
A co-worker of mine mentioned that she saw a banner in the front window of a tavern in downtown Kirkland advertising, in larger-than-life letters, that ``Clayton Park'' was performing there on Sunday nights.
The only problem: Sunday night is usually when I am home with my wife, watching ``The Simpsons'' on TV.
This wasn't the first time someone had mentioned this to me: In the past couple months, I had gotten e-mails from a couple readers noting that they heard that I was performing in Kirkland, to which I had responded, no, it wasn't me, but because no one could remember the name of the tavern, I was unable to verify the rumors.
Fortunately, my co-worker was able to supply me with the name of the venue in question.
Upon calling the tavern, the man who answered remarked that some people had mentioned to him that there was another musician out there named Clayton Park. He informed me that the ``Clayton Park'' that was playing at his tavern was actually a recently formed acoustic blues band. The name of the band members were ``Tom,'' ``C.J.'' and ``Sarah.'' No Clayton Parks, he said.
When I asked him why in the world they chose Clayton Park as their band name, the tavern employee handed the phone to Tom, who, as luck would have it, happened to be present when I called.
Tom, who expressed his amusement at the idea that he was actually talking to someone named Clayton Park, refused to tell me why his band had chosen its name, saying only that it was a ``secret.'' He did add, however, with a laugh, that I should sit in with them during a performance and that they could introduce me as the ``original Clayton Park.''
His tone became more serious when I told him that I was uncomfortable with the idea of another Clayton Park making the rounds locally as a music performer, particularly since I've spent years trying to develop and maintain a reputation as a live performer/recording session musician in this area -- not to mention the fact that I also write a weekly newspaper column under my name.
To avoid potential confusion, I suggested that Tom's band, seeing as how it was only a few months old, and that none of its members actually were named Clayton Park, consider changing its name.
Tom responded by saying no, his band had no intention of changing its name and that there are lots of musicians with the same names, noting that he knows of ``two Brian Butlers'' who are performing locally. If I had a problem with his band's use of the name Clayton Park, tough, he said. And that's pretty much how our conversation ended.
Determined to find out what rights, if any, I might have in the matter, I contacted Bruce Gardiner, a trademark and copyright attorney with The Gardiner Law Firm in Kirkland, who graciously agreed to take the time to explain what trademarks are and how they work.
``Under Washington, and for that matter U.S., law, the first to use the name has the exclusive right to it,'' said Gardiner. ``If, as you say, you were using it first, if you ever needed to go in front of a judge, you'd have a good strong case.''
Gardiner added, however, that it is still important to register my name as a trademark if I want to protect my right to use it. Registration forms are available online at www.secstate.wa.gov/corps/default.htm
Before applying to register for a trademark, it is important to conduct a search to make sure no one else has trademarked the name first, he said. This can also be done online, but to be more thorough, it is best to hire a professional, Gardiner pointed out.
If someone else has registered the name first, that registration can be contested and overturned if one can prove that he/she was using it before the other party -- at least in the United States.
In many other countries, however, the first to register a trademark has the exclusive right to that name. Coca Cola, for example, might have to pay someone in another country for the right to sell its products in that nation if that other person had already trademarked that name.
Registering one's name as a trademark doesn't prevent someone else from incorporating under that name (in my case, for example, another band could incorporate as ``Clayton Park's Band Inc.''), but they would be prohibited from using that name as a brand name.
``There's also the matter of assumed business names, also known as a `dba' (doing business as),'' which can be registered at the state's Master Business Licensing Center for a mere $5. ``But understand that a trademark that is registered would trump a `dba,''' Gardiner said. ``Also, if they were trying to use a corporate name as a brand name, a trademark registration would trump that, too.''
Gardiner warned, however, that the state looks carefully at how a trademark application is worded. If the requested use is overly broad and too vague, it could very well get rejected.
There are 42 categories for trademarks, ranging from ``chemical'' and ``paints'' to ``education and entertainment.'' More than one party can receive the right to trademark a name if they are for different types of use: say a manufacturing company called Clayton Park Corp. vs. a musician named Clayton Park.
``Picture yourself at a supermarket: If your use of the name is at the end of one aisle and another person's use of the name is at the other end of the store, there is not a conflict,'' said Gardiner. But, ``If they are side by side,'' as in the case of two Clayton Park musical performers both located in the Seattle area, ``then obviously, there's a conflict.''
``The question'' that a judge would look at, said Gardiner, ``is: Is your use of the name going to be confusing to the public with the other party's use of the name?''
Gardiner added that ``there are also some state statutes where celebrities have a right to protect the use of their name whether or not they've trademarked it. You couldn't, for example, start a band called `Paul Allen.'''
It's debatable as to whether having a weekly newspaper column makes me a celebrity, but if I were a betting man, I'd say no, hence my decision to apply for a trademark.
Postscript: Upon driving over to check out the Kirkland tavern yesterday, I noted the banner had been altered to read: ``Live music Sunday nights featuring the artists formerly known as Clayton Park.''
Whew.
I do wish Tom and his bandmates much success. I'm just glad they'll be doing it as someone other than me.
Clayton Park's column runs Fridays. He can be reached at 425-453-4224 or clayton.park@eastsidejournal.com.