Trademark Protection of Surnames Law and Legal Definition

Pursuant to 15 USCS § 1052, surnames are not given trademark protection. But a surname can qualify for protection if it acquires a secondary meaning. The mark can acquire secondary meaning through extensive use and advertising in commerce.

However, some surnames do not require secondary meaning in order to receive protection. A surname can receive protection without secondary meaning, if the mark is not perceived primarily as a surname, even if the only true meaning of the word is in fact as a surname. However, even if a surname is rare in the public at large, but the relevant consuming public conceives of the name primarily as a surname, it cannot be protected without secondary meaning. When secondary meaning is established by a prior user, courts will balance the natural right to use one’s own name with a disclaimer and the namesake’s good faith in using the name as a trademark.

A surname can be registered and protected without proof of secondary meaning, if it is used together with arbitrary or fanciful components. However, such protection will be weak with respect to the surname component alone, except insofar as that component acquires secondary meaning.