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I made up a fictional band for a story and called it Enceladus, only to discover that there is already a real band with the same name (not a very well-known band). Could I still use the name without fear of being sued?
I am located in the US, and the band in question is a Texas-based band that seems to be mostly concentrated in the Southern US.
According to the Law Office of Alan Korn it is not possible to 'copyright' a band name, but there are other ways to protect it from being 'stolen' by another band. That said, this seems to apply more to two real bands having the same name rather than your situation.
The article How to Use Real People in Your Writing Without Ending Up in Court by Helen Sedwick (a business lawyer with 30 years of experience) seems to be more relevant. Even though a band name is not a person's name, this simple rule would seem apt:
If what you write about a person is positive or even neutral, then you don’t have defamation or privacy issues.
In other words, don't say stuff that might annoy the band.
Personally, if I were in Enceladus and someone wrote a book or story with the name of my band in it then I'd probably be chuffed (British word for 'very pleased'). Seems like a win-win for all concerned. I mean - they would tell friends and family about the story, giving some attention and, in the other direction - your story might bring some attention to the band.
And actually, Enceladus have a Facebook page - why not drop them a line on it? They look like a decent bunch of lads - this could be the start of a n interesting friendship - who knows!
Good luck with your writing going forward.
There is no need to fear when using names that are also in use in the real world.
Before delivering your final manuscript is handed in there will also be an editor that will reject possible legal issues ("possible recourse to further legal options to protect our valuable intellectual property rights.")
If you want to play it safe from the get-go I suggest scrambling the names a bit. For example:
All the credit goes pretty much to this url so I suggest reading this as well.
Source: https://www.dailywritingtips.com/use-of-trademark-names-in-fiction/
