I Named My Business After Myself - Can I Still Get a Trademark?
Are you thinking of using your name as a trademark? Some of the most famous and valuable trademarks are based on personal names. Funny enough, you may not have the right to use your own name as a trademark! Thankfully, it is possible to trademark your personal name under certain circumstances, so let's talk about it.
Trademarking Last Names
First, let's talk about using your surname (aka your last name) as a trademark. Under U.S. trademark law, you can't trademark your last name without proving that it has "acquired distinctiveness". Basically, if the public sees your last name they should automatically know it's a brand. If they don't, you'll need to prove that it's distinctive enough to be protected.
There are five factors to consider to determine if you have to show acquired distinctiveness. Three of those factors are if your last name is rare, if it has any other recognized meaning, and if the stylization of lettering is distinctive enough to create a separate commercial impression. Let's use McDonald's as an example. Most people think of burgers & fries when they hear the name by itself, even though it's a relatively common last name. That means it has acquired enough distinctiveness to qualify for trademark protection.
Trademarking First Names
Unlike surnames, personal names - first names by themselves, or first names together with last names - can be trademarked without proving they have secondary meaning because they're considered inherently distinctive. So if you're thinking of using your first name as a trademark, you might be in luck. But if you're using your full name, you need to make sure that someone else doesn't beat you to the punch. In order to qualify for trademark protection, your name can't cause a likelihood of confusion with a similar name already in use for related products or services. So if my name was Anne Taylor, I wouldn't be able to trademark my personal name to sell clothing because another company already owns the trademark for Ann Taylor.
In a famous case, the Trademark Trial and Appeal Board reversed a refusal to register the mark P.J. Fitzpatrick Inc. The Board decided that the initials within the mark were enough to avoid the idea that the mark was “primarily merely a surname”. So if you an initial or two to a surname, it's possible that the public will interpret the mark to be a personal name and not a surname.
Now if you're a celebrity, federal trademark law protects your name even if you're only selling yourself and not merchandise. However, they don't protect your name if your name/trademark would raise "a false suggestion of connection" with another institution, corporation, or person, whether that person is living or dead. You have to consider a few elements when thinking about a false suggestion, including whether your name is very close to someone else's name or identity, and whether that other person's name or likeness is famous enough that the public would assume you two are connected.
So there you have it, friends. You can use your name as a trademark under certain circumstances. Just make sure you do your research and follow the guidelines to ensure that your name/trademark is distinctive enough and won't cause any confusion.