If you want to use the name of a living person as a trademark for your goods or services, you may face some challenges and complications. Trademarking a name of a living individual involves not only the usual trademark requirements, but also some additional considerations that you need to be aware of. In this blog post, we will discuss some of the key issues that you need to know before you apply for a trademark for a name of a living individual.
What are the additional considerations for trademarking a name of a living individual?
To register a name of a living person as a trademark, you need to consider the following factors:
Consent of the Living Individual
If your trademark appears to include the name, signature, or portrait of a particular living individual, you need to obtain the written consent of that individual and submit it with your trademark application. This is to protect the individual’s right to privacy and right to control how their name, likeness, and identity is used. If you do not provide the consent, the USPTO may refuse to register your trademark.
Surname vs. First Name
If your trademark includes only the surname (last name) of a living individual, you may have difficulty registering it as a trademark. This is because surnames are generally considered to be primarily merely surnames, which means that they are not distinctive enough to function as trademarks. To register a surname as a trademark, you need to show that it has acquired distinctiveness, which means that consumers have come to recognize it as a source identifier for your goods or services. This can be done by providing evidence of long and exclusive use, extensive advertising and promotion, consumer surveys, or other relevant factors. On the other hand, if your trademark includes only the first name or nickname of a living individual, you may have an easier time registering it as a trademark. This is because first names and nicknames are generally considered to be more distinctive and less common than surnames. However, you still need to make sure that your first name or nickname is not generic or descriptive of your goods or services, and that it does not cause confusion with any existing trademarks or pending trademark applications.
The Celebrity Factor
If your trademark includes the name of a well-known or famous person or someone who has some public recognition under that name in connection with the relevant industry, business entity, goods, or services, you may have trouble registering it as a trademark. This is because such names may falsely suggest a connection with the person or imply an endorsement or sponsorship by the person. To register such names as trademarks, you need to show that there is no likelihood of confusion or deception among consumers as to the source or affiliation of your goods or services. This can be done by providing evidence of consent from the person, disclaimer of any connection with the person, distinctiveness of your goods or services from those associated with the person, or other relevant factors. Please note that even with such evidence, overcoming a false suggestion of connection can be difficult, and it is generally recommended that you consider a different name to trademark.
How can you register a name of a living individual as a trademark?
To register a name of a living person as a trademark, you need to follow these steps:
Conduct a comprehensive trademark search before filing to make sure that your name is available and does not infringe on anyone else’s rights.
Choose between an in-use and an intent-to-use trademark application depending on whether you are already using your name in commerce or plan to do so in the near future.
Provide proof of use or intent to use your name in commerce for your goods or services.
Provide written consent from the living individual whose name is included in your trademark.
Provide evidence of acquired distinctiveness if your trademark includes only a surname.
Provide evidence of no likelihood of confusion or deception if your trademark includes the name of a well-known or famous person.
Need help with your trademark application?
Whether you want to use your own name or someone else’s name as a trademark, it is advisable to consult with a professional trademark attorney who can guide you through the process and help you avoid common pitfalls and mistakes.
At The Trademark Place, we are experienced in helping clients register and protect their trademarks. If you need help with registering a trademark or have any questions about trademark law, contact us today for a free consultation.