Can I trademark my name in the United States?

Can I trademark my name in the United States?

A name is the most valuable piece of intellectual property that a person owns.  A person’s good name is integral to their standing in society.  Many people use their personal name as their business name as well.  Eventually, if their business is successful a person may want to register their name as a trademark.  This raises the question as to whether the United States Patent and Trademark office will register a trademark which just a person’s legal name.

It should be noted that we are not talking about the legality of using your name in business.  There are many business names which cannot be registered as trademarks but could be used as a business name.  The question asked in this blog post is whether the United States Patent and Trademark Office will register a trademark on a person’s name.

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.  Trademark rights come from actual use of the mark in commerce. A trademark can last forever as long as you continue to use the mark in commerce to indicate the source of goods and services.  Registering the trademark with the United States Patent and Trademark Office is not mandatory to have rights to the mark. You can establish “common law” rights in a mark based solely on use of the mark in commerce, without registering the trademark with the United States Patent and Trademark Office. However, federal registration of a trademark with the United States Patent and Trademark Office has several advantages, including a notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.

Use of a business name does not necessarily qualify as trademark use, though use of a business name as the source of goods or services may qualify it as both a business name and a trademark. Many states and local jurisdictions register business names, either as part of obtaining a certificate to do business or as an assumed name filing.   A state’s authorization to form a business with a particular name does not also give you trademark rights and states do not require proof of a trademark on a name to form a business.

To restate simply – A persons may use their personal name in business, and by using their personal name in business gain trademark rights, but the United States Patent and Trademark Office still may not allow a personal name to be registered as a trademark.

15 U.S.C. §1052 of the United States Trademark law states that – No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it… (e) Consists of a mark which… (4) is primarily merely a surname.  This is not a complete ban on registering a personal name as a trademark, but it creates a barrier that must be over come.  To over come 15 U.S.C. §1052(e)(4) it must be shown that the the trademark has a secondary meaning to the public; that the public associates the goods and services of the applicant with the trademark.

Five factors have been identified to be considered when determining whether a mark is primarily merely a surname or if it has a secondary meaning:

  1. whether the surname is rare (see TMEP §1211.01(a)(v));
  2. whether the term is the surname of anyone connected with the applicant;
  3. whether the term has any recognized meaning other than as a surname (see TMEP §§1211.01(a)–1211.01(a)(vii));
  4. whether it has the “look and feel” of a surname (see TMEP §1211.01(a)(vi)); and
  5. whether the stylization of lettering is distinctive enough to create a separate commercial impression (see TMEP §1211.01(b)(ii)).

If there is any doubt as to whether a term is primarily merely a surname, that doubt will resolved the doubt in favor of the applicant.  Even if it is found that a trademark is primarily merely a surname, the trademark may still be placed on the supplemental register of trademarks.

If you want to obtain a trademark on your personal name it is best to consult with an attorney that specializes in trademark law to discuss all the facts.