The internet has the power to turn an individual into an overnight celebrity. Or, in other words, it can turn a person into a brand. This raises the question, can someone obtain a registered trademark in their personal name?
The short answer is yes, but in very limited circumstances. The Lanham Act states that a mark that is primarily “merely a surname” can only be registered on the Principal Register with proof of secondary meaning. For celebrities, this burden can often be met. But for everyone else, secondary meaning is difficult to obtain.
Often times, individuals wish to register their name as a service mark. While trademarks and service marks provide substantially the same rights, a service mark identifies the source of services, rather than goods.
Pursuant to 15 USC 1127, and as summarized by 1301.02(b) the Trademark Manual of Examining Procedure, a name must do more than identify a character. In contrast, it must identify and distinguish services in addition to identifying the character.
Anytime trademark questions arise, it is important to focus on the purpose of trademark law: protecting the public by preventing marketplace confusion. In other words, the question regarding whether names can be registered is not just the name itself, but rather, does the public recognize the use of the name as identifying a particular source of goods or services.
The level of connection required between your name and what your doing can be difficult, but not impossible, to prove. The more established a business, with evidence proving the volume of sales and consistent advertising measures, the better the chance of proving the required connection.
One final note, the level of secondary meaning required for registration increases when the use of a personal name is traditional for a specific profession. For example, law firms must have a “strong” showing of secondary meaning, otherwise the ability to create new law firms or the ability of a specific attorney to practice would be substantially hindered.
If you are considering protecting your name through trademark or service mark protection, contact our trademark attorneys today.
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