LEGAL GUIDE
Written by attorney Ian Donald Titley | Jan 8, 2011

Can I Trademark My Family Name?

You can, but it is not easy. US federal Trademark Law is covered by the Lanham Act. Section 2(e) says trademarks which are “primarily merely a surname" are not registerable.

To get around this you need to show the trademark you are applying for is not recognized “primarily" as a surname but through extensive use it has developed a “secondary" meaning and has become well known (e.g. “McDonald’s" for food or “Sauer’s" for seasonings).

If you don’t have at least five years of substantially exclusive use you may obtain a registration on the “Supplemental Register." In this case the Trademark Office issues a somewhat second class trademark registration acknowledging that you claim rights in the mark. Obtaining a Supplemental trademark registration can be very helpful. Your mark is easier for others to find so they avoid using it, and the registration starts the clock running on proving your five years of use.

Another way to overcome this objection is to apply to register your first and last name as the trademark and indicate the trademark “identifies a living individual whose consent is of record" for example “Priscilla McCall’s" is registered as the name of a chain of stores.

Another strategy is to incorporate your last name into a phrase. For example, “Mason Brothers" is registered as a trademark for music recordings.

The reasons for prohibiting trademark protection for surnames are murky, but there are strategies to overcome this problem.

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