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Sanaa T...
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You may be landing yourselves in a bit of a fix, if you choose to do that. The gaming company may wish for royalties from your band should they hear of your song, and the higher risk factor is being sued.
Before deciding on a particular band or cover name, it is important to determine whether anyone else is already using that name. A band’s rights in its name depend on a few key factors: (1) whether the band used the name first; (2) the geographic area (city, state, region, etc) where the band uses the name; and (3) whether the band actually performs under the name. If the band used the name first it may be able to stop other acts from using the same or a similar name. However, unless the band has obtained a federal trademark registration giving it an exclusive right to use the name throughout the United States, the band would only have the rights to use the name exclusively in the areas where it was the first to use the name. For example, if a local band performed live or sold its CDs only in Chicago, it could not prevent a band in California from using the same name, but could stop the other band from using the name in Chicago if the Chicago band was the first to use the name in that area. Additionally, if a band applied for a federal trademark registration for it’s name in 2005, it could not prevent another band that started using the name in 2001 from using the name in
the geographic area(s) where that band performs or sells its music.
Many people when they start a band think that they want to copyright the name. Unfortunately a copyright is reserved for a written work, such as a song, essay or book. Since you name would be more considered a brand, you can't copyright it. You can however trademark it. Generally a trademark is through off to protect a product of some kind, but trademarks include a category known as service marks. This helps protect people who are offering a service, rather than a product, and that is just what you and your band are doing.
You CANNOT use the R symbol next to the word Nintendo as that would mean you are the authorized owner of the mark.
The “(R)” symbol is the trademark symbol. This symbol can only be used if the product or name is federally registered and protects the name. This is unlike both the copyright symbol and the “TM” symbol. The copyright symbol can be used even if the work isn't registered. And the “TM” symbol that you will see on occasion isn't legally defined at all. Basically it is a symbol used to claim some kind of ownership, but isn't a registered trademark.
The federal registration symbol may only be used once the mark has been
registered by the USPTO. While an application is pending, the ® symbol cannot be used until a federal registration has been obtained.
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