Can I trademark a person’s name?
Maybe. You might be able to register a person’s name as a trademark if the name meets certain conditions. Here are requirements for trademarking your own name or someone else’s name:
- If the name identifies a living individual, consent to register must be made of record [see TMEP 813]. If it’s obvious that the mark applied for is the applicant’s name, then consent may be presumed.
- As with any other mark, a person’s name should not pose a likelihood of confusion with any other registered trademarks or prior-pending trademark applications.
- If the mark includes a person’s last name, then the USPTO will determine if the mark is “primarily merely a surname” (will most folks recognize that name as being merely a surname?). If so, evidence of acquired distinctiveness will be required [see TMEP 1211].
Can I register someone else’s name as a trademark?
It might be possible, but you’ll need to obtain their consent to register if they’re still living.
What is the relationship between right of publicity and trademarks?
Everyone has a right to privacy, an inherent right to be left alone.
Famous people have an additional IP right known as the right of publicity that protects against the usage of the famous person’s name or likeness to make a profit without consent. Celebrities would have the right to stop others from using their names or images for commercial benefit without permission. Obviously, not everyone will enjoy the right of publicity.
What are special requirements for trademarking a living person’s name?
To register a person’s name, the trademark application should specify whether or not the name identifies a living individual. If it does, then the consent of the living individual must be made of record.
If the mark includes a last name, there is a risk that the USPTO trademark examining attorney may issue a surname refusal. Here are the factors that will be considered in determining whether a last name is primarily merely a surname [see TMEP 1211.01]:
- (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 [see TMEP §1211.02(b)(iv)];
- (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 “structure and pronunciation” 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 services (as opposed to goods) are identified in the trademark application, the USPTO will want to see the name being used in a manner that identifies and distinguishes the services as opposed to identifying the name of a character or person performing the service [see TMEP 1301.02(b)].
How do celebrity names get registered as trademarks?
It would seem that registering celebrity names for goods, as opposed to services, may be less difficult since the applicant would not have the additional burden of showing that the name is being used to identify the services being performed. Of course, a celebrity that is late in the game of filing trademarks may have an uphill battle if others have already registered trademarks that may be confusingly similar to the celebrity’s name.
Just like any other trademark applicant, a celebrity seeking to trademark their name must still contend with the likelihood of confusion with prior trademark filings. Celebrities do not get a free pass just because they’re famous.
Can names of authors and artists be registered as trademarks?
Names of authors and performing artists must overcome additional hurdles if they are to be registered as trademarks for written works or sound recordings [see TMEP 1202.09]. Additional burdens are imposed on the names of authors, artists and performers when it comes to their creative works because the USPTO wants to make sure that the name:
- refers to a series of works (as opposed to a singular work); and
- identifies the source of the series of works (as opposed to identifying the writer or performing artist).
Can character names or personal names be registered as service marks?
It is not uncommon to seek trademark protection for the name of a character or person who provides services. For example, a well known speaker might want to trademark his or her name in connection with providing talks, seminars, speaking engagements, etc.
The USPTO will want to see evidence that the name is being used to identify the source of the services in addition to identifying the person or character performing the service [see TMEP 1301.02(b)].
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