Can You Trademark Your Own Name?

Exapno_Mapcase · February 5, 2011, 2:45am

Harlan Ellison ®.

Quasimodem · February 5, 2011, 2:51am

I once belonged to a chatroom called “The Park”. Anyone remember it?

I entered Quasimodem® as my chat name because back in the early 90’s i thought the name was all mine.

Lot of good it did.

Google it and watch as all the others appear!

Q

The_Hamster_King · February 5, 2011, 3:40am

Coming to Wal-Mart this summer: Sarah Palin-brand Jesus!

RealityChuck · February 5, 2011, 3:52am

Walter Taylor was a member of the Taylor Wine family. The family sold their company to Coca Cola. When Walter opened a winery, Coca Cola refused to allow him to use his own name, citing the trademark violation. It reached the point where not only couldn’t he name the brand “Taylor Wine,” but he couldn’t even put his last name anywhere on the label. For years, his Bully Hill wine has a label with the last name of the winemaker blacked out.

Acsenray · February 5, 2011, 4:25am

Thatmkind of stuff is pretty common and it’s perfectly justified. When someone like Kroc or Coca-Coca pays millions to buy someone out, in many cases the most valuable thing they’re paying for is the trademark. If the seller then turns around and uses the same mark again, then they’re basically interfering with the whole purpose of that gigantic buyout.

Duckster · February 5, 2011, 4:28am

acsenray, thank you.

Now it remains to be seen if her desire is to protect a commercial venture, or that something else. Based on Exapno Mapcase’s research we just have to wait and see if Sarah will attempt to stretch her claim beyond honest commerce.

Tim_T-Bonham.net · February 5, 2011, 5:02am

Well, it wasn’t that gigantic – the McDonald brothers only got a million each from Kroc for McDonalds. And it wasn’t that they turned around and did it again – it was their original restaurant, with the same name McDonalds that it had always had. It was not included in the sale to Kroc, he was angry about that, and then demanded they change the name.

Fear_Itself · February 5, 2011, 8:45pm

It appears the Palin trademark appilcation has been denied, for now. She neglected to sign it, among other things.

Exapno_Mapcase · February 5, 2011, 11:14pm

Thank you for reading post #17.

Acsenray · February 8, 2011, 8:25pm

Here are some portions of the TMEP offering more detail on some of these questions. (Note, particularly for us Dopers, the ruling denying registration of the name “Cecil Adams” for failure of a showing of use in commerce.)

This is a long quote, but I think it helps answer some of the questions here (and of course there’s no copyright problem since this is a quote from a government manual).

Trademark Manual of Examination Procedures:

1202.09(a) Names and Pseudonyms of Authors and Performing Artists

Any mark consisting of the name of an author used on a written work, or the name of a performing artist on a sound recording, must be refused registration … if the mark is used solely to identify the writer or the artist. … Written works include books or columns, and may be presented in print, recorded, or electronic form. Likewise, sound recordings may be presented in recorded or electronic form.

However, the name of the author or performer may be registered if:

(1) It is used on a series of written or recorded works; and
(2) The application contains sufficient evidence that the name identifies the source of the series and not merely the writer of the written work or the name of the performing artist.

If the applicant cannot show a series, or can show that there is a series but cannot show that the name identifies the source of the series, the mark may be registered on the Supplemental Register … . These types of marks may not be registered on the Principal Register under §2(f).

**1202.09(a)(i) Author or Performer’s Name – Evidence of a Series
**

In an application seeking registration of an author’s or performer’s name, the applicant must provide evidence that the mark appears on at least two different works. Such evidence could include copies of multiple book covers or multiple CD covers that show the name sought to be registered. A showing of the same work available in different media, i.e., the same work in both printed and/or recorded or downloadable format, does not establish a series.

The identification of goods need not reflect that the applicant is using the name on a series of works (either written or recorded). It is sufficient that the record contains the evidence of a series.

**1202.09(a)(ii) Evidence that the Name is a Source Identifier
**

The use of the author’s or performer’s name on a series of works does not, in itself, establish that the name functions as a mark. The record must also show that the name serves as more than a designation of the writer or performer, i.e., that it also serves to identify the source of the series. See In re First Draft, 76 USPQ2d 1183, 1191 (TTAB 2005) (pseudonym FERN MICHAELS identified only the author and did not function as a mark to identify and distinguish a series of fictional books because the “evidence of promotion was scant,” despite applicant’s showing that the name had been used as an author’s name for 30 years; that 67 separate books had been published under the name, and approximately 6 million copies had been sold; that the book jackets listed the titles of other works by Fern Michaels and promoted her as a bestselling author; that the author had been inducted into the New Jersey Literary Hall of Fame; and that there was a www.fernmichaels.com website); In re Chicago Reader Inc., 12 USPQ2d 1079 (TTAB 1989) (CECIL ADAMS, used on the specimen as a byline and as part of the author’s address appearing at the end of a column, merely identifies the author and does not function as a trademark for a newspaper column).

A showing that the name functions as a source identifier may be made by submitting evidence of either: (1) promotion and recognition of the name as a source indicator for the series … or (2) the author’s or performer’s control over the name and quality of his or her works in the series… .

**1202.09(a)(ii)(A) Promotion and Recognition of the Name
**

To show that the name of an author or performing artist has been promoted and is recognized as indicating the source of a series of written works, the applicant could submit copies of advertising that promotes the name as the source of a series, copies of third-party reviews showing others’ use of the name to refer to a series of works, or evidence showing the name used on a display associated with the series of works. …

**1202.09(a)(ii)(B) Control over the Nature and Quality of the Goods
**

Alternatively, an applicant may show that the name of an author or performing artist functions as a source indicator by submitting documentary evidence that the author/performer controls the quality of his or her distributed works and controls the use of his or her name. Such evidence would include license agreements and other documentary or contractual evidence. …
If the applicant maintains control over the quality of the goods because the goods are published or recorded directly under the applicant’s control, the applicant may submit a verified statement that “the applicant publishes or produces the goods and controls their quality.”

1202.09(a)(iii) Names of Authors and Performing Artists in §1(b), §44, and §66(a) Applications

The issue of whether a proposed mark identifies only an author or performing artist is usually tied to use of the mark, as evidenced by the specimen. Therefore, generally, no refusal will be issued in an intent-to-use application … until the applicant has submitted specimen(s) with an allegation of use … .

1202.09(b) Names of Artists Used on Original Works of Art

An artist’s name or pseudonym affixed to an original work of art may be registered on the Principal Register without a showing that the name identifies a series. Original works of art includes paintings, murals, sculptures, statues, jewelry, and like works that the artist personally creates. …

**1301.02(b) Names of Characters or Personal Names as Service Marks
**

Under 15 U.S.C. §1127, a name or design of a character does not function as a service mark, unless it identifies and distinguishes services in addition to identifying the character. If the name or design is used only to identify the character, it is not registrable as a service mark. …

Similarly, personal names (actual names and pseudonyms) of individuals or groups function as marks only if they identify and distinguish the services recited and not merely the individual or group. …

The name of a character or person is registrable as a service mark if the record shows that it is used in a manner that would be perceived by purchasers as identifying the services in addition to the character or person. …

TravisFromOR · February 8, 2011, 11:54pm

I’ve flown American before. Their planes smell like a urinal…

Derleth · February 9, 2011, 2:08am

Sysco restaurant supplies (apparently) and Cisco routers and other networking hardware: The standard is confusion, not a literal match; if Sysco and Cisco were in the same business there would be a fair chance of confusion between the names.

This is why the Lindows Linux distribution had to be renamed Linspire, for example: ‘Windows’ may well be a common word in general usage, but when it comes to computer operating systems, it’s owned by Microsoft and even getting too close is not allowed.

For that reason, I can’t open a Windy’s fast food restaurant or sell Iowa Sound-brand speakers. Or, well, I could for a while until the relevant trademark owners legally made me stop.

Darth_Panda · February 9, 2011, 2:49am

See USC 1125 (c)(3)(A)(2)&(B) - the Lanham Act as modified by the Trademark Law Revision Act, Federal Trademark Anti-Dilution Act and Trademark Dilution Revision Act.

It’s important to remember that trademark law essentially exists to protect the consumer and although the dilution laws in the 90s started to change that, it is still the primary purpose and the debates around the federal dilution laws specifically addressed Constitutional concerns - so I’m not seeing this as a particular useful path for any politician seeking to avoid criticism.

Leo_Bloom · February 9, 2011, 4:03am

Can I name my future child “[insert weird graphics here]”–later on he be nam**ed–not “known as”–the Sally formerly named [insert the previous graphics here]?

Leo_Bloom · February 10, 2011, 6:44am

Get this kind of post off the thread please, mod

Tim_T-Bonham.net · February 10, 2011, 7:06am

Indeed. Since it just repeats what everyone already knows, it adds nothing to the thread.

Acsenray · February 10, 2011, 3:10pm

I’m not sure what you’re asking, but naming your child is not really a trademark law issue,

Annie-Xmas · February 10, 2011, 3:40pm

Andrew Lloyd Webber did trademark his name.

Acsenray · February 10, 2011, 3:56pm

You’ll find hundreds if not thousands of registered trademarks based on personal names. Is there a point to be made by picking out any particular one?

Prelude_to_Fascination · February 10, 2011, 5:01pm

I’m of the belief Palin’s trying to create a brand for herself, as noted with Tommy Hilfiger et al.

A famous probably apocraphyl story that’s related:
http://www.chillingeffects.org/resource.cgi?ResourceID=31

It seems pointless to trademark your own name for no reason, hence my belief that she intends to trade on it.