How Much Money Should I Expect from Touring with a Mid-Sized Indie Band?
I posed your question to the Fan Landers resident legal expert, Matthew Hale Clark, who is a musician/attorney here in Chicago, and, as luck would have it, my husband. "In this day and age of the internet, the answer is that it's probably not fair game. To oversimplify the trademark issue, the question is whether there could be a likelihood of confusion in the relevant marketplace. Here, regardless of the genre, scene or location, you are playing music and so is this other band. Them being broken up doesn't matter to a judge, but whether or not they did anything under that name does--if they really never played a show, put out a record or even had a MySpace page--essentially, never entered the market--then it might be fair game."
Likelihood of confusion doesn't just mean exact same name it means close and similar names--the emphasis is on confusion. Sadly, all the antler, crystal, rainbow, moon and sun bands going right now don't seem to be bothered by such things.
Also, I have worked with and known bands who chanced it with a name and it came back to bite them in the ass. Is a band name so perfect and precious that you are willing to cede years of groundwork when all the sudden this other band rises from the dead and wants a piece of your action? Do you want to have your albums shelved in two different sections at the record store? Do you want to have to add a clunky "Jr." or "Inc." or "NYC" to the end of your name two albums in? If so, by all means, go right ahead.
Our final suggestion is that you should name your band "Ronald Reggae". Unless you are a jam band, in which case, we think you should call yourselves "Chastity's Groove".