Trademarking Your Own Name

In 2005, the actor Morgan Freeman went to war over a domain name. A company had registered morganfreeman.com and pointed it at a commercial search page, hoping to harvest clicks from a famous name. Freeman fought back, and a World Intellectual Property Organization panel ultimately handed him the domain, reasoning that his long and celebrated career had made "Morgan Freeman" recognizable enough to function as a brand. The lesson buried in that small skirmish is bigger than one website. A personal name, in the right circumstances, becomes a piece of intellectual property worth defending. Your name can do more than appear on a driver's license. It can sit on a registration certificate at the United States Patent and Trademark Office, right alongside the Nike swoosh and the NBC chimes.

But here is the twist that surprises almost everyone who tries it: your own name is, legally speaking, one of the harder things to trademark. The law treats a fanciful coinage like KODAK or PEPSI as a gift to the brand owner, instantly registrable. It treats your last name, the one you have carried since birth, with suspicion. Why should the Smith family have to let one Smith monopolize "Smith"? That instinct is baked into the federal trademark statute, and it produces a body of rules that trips up celebrities, designers, founders, and ordinary people alike.

This article is your guide to that thicket. We will explain, in language a judge, a lawyer, and a curious non-lawyer can all follow, exactly what it takes to register your name as a trademark. We will cover the two headline obstacles, the "primarily merely a surname" bar and the consent requirement for living people's names, plus the escape hatch of secondary meaning. We will walk through the actual test the USPTO uses, the five-factor inquiry from In re Benthin, and the surprisingly colorful run of decisions that fills it in, from BELUSHI'S to FIORE to P.J. FITZPATRICK. And we will draw the crucial line between trademarking your name and the entirely different legal tool called the right of publicity. By the end, you will know whether your name can be a trademark, what it takes to get there, and what to do if someone else tries to claim it first.

A quick note on vocabulary before we dive in, because trademark law loves its jargon. A trademark is a word, name, symbol, or design that identifies the source of goods (think NIKE on shoes). A service mark does the same job for services (think a consulting firm's name). The rules are essentially identical, and lawyers usually just say "trademark" for both, as we will here. Where the distinction matters, we will flag it. If you want a broader grounding before you go deep, our piece on trademark basics covers the fundamentals; this article assumes you want the name-specific story.

Why a Name Is Trademark-Hard in the First Place

To understand why personal names are special, you have to understand what a trademark is for. A trademark is not a reward for cleverness or a property right in a word. It is a tool to prevent consumer confusion. When you see "FORD" on a car, the law wants you to be able to trust that Ford Motor Company stands behind it, and that you are not being fooled by an impostor bolting the name onto a lemon. The mark protects two interests at once: the public's interest in not being deceived, and the brand owner's interest in the goodwill it has built. The federal statute that governs all of this is the Lanham Act, codified at 15 U.S.C. § 1051 and following.

Now layer a name onto that purpose. A surname like "Johnson" or "Patel" or "Nguyen" is shared by thousands or millions of people. If the first Johnson to open a hardware store could lock up "Johnson" for all hardware, the law would be handing one family a weapon against every other Johnson who ever wanted to hang out a shingle. Courts and the USPTO have said this out loud. The whole point of the surname bar, the Trademark Trial and Appeal Board explains, is "to keep surnames available for people who want to use their own names in business." People have something close to a natural right to trade under their own names, and the trademark system is built to respect it. So the Lanham Act installs a presumption: a mark that is "primarily merely a surname" is not registrable on the strength of the name alone. It can become registrable, but only after the name has stopped being just-a-name in the public's mind and started being your brand.

There is a second worry, too, and it is about consent and dignity rather than competition. Imagine someone trademarks your name, attaches it to a product line, and starts selling. Even if they are not literally lying about who made the goods, there is something deeply off about a stranger commercializing your identity without your blessing. The Lanham Act addresses this in a separate provision, Section 2(c), which forbids registering a mark that consists of or comprises the name of a particular living individual without that person's written consent.

These two rules, the surname bar and the consent requirement, are the twin engines of "trademarking your own name." Almost all of the drama in this area comes from one or both of them, and the two are entirely independent. Clearing one does nothing to clear the other. Let us take them one at a time.

The First Hurdle: "Primarily Merely a Surname" (Section 2(e)(4))

The governing language lives in Section 2(e)(4) of the Lanham Act, 15 U.S.C. § 1052(e)(4). It bars registration on the Principal Register of a mark that, "when used on or in connection with the goods of the applicant[,] is primarily merely a surname." That phrase, primarily merely a surname, is a term of art carrying a great deal of weight. Notice what it is not: it is not "any surname." It is surnames that the public would perceive primarily and merely as a last name, and nothing else.

This matters because plenty of words are both surnames and ordinary words. "King" is a surname, but it is also a noun about royalty. "Bird" is a surname (ask any basketball fan), but it is also a creature with feathers. "Cotton" is a surname, but it is also a fabric. When a word has a meaningful non-surname significance, examiners and the Trademark Trial and Appeal Board (TTAB), the USPTO tribunal that hears trademark appeals and disputes, often conclude that the public does not perceive it as primarily merely a surname. The word slips the bar.

The controlling question, repeated in case after case, is the mark's "primary significance to the purchasing public." See In re Kahan & Weisz Jewelry Mfg. Corp., 508 F.2d 831, 832 (C.C.P.A. 1975); In re Adlon Brand GmbH & Co. KG, 120 U.S.P.Q.2d 1717 (T.T.A.B. 2016). Everything else is just evidence in service of answering that one question.

The Five-Factor Test: In re Benthin

The USPTO does not flip a coin. To structure the "primary significance" inquiry, the Board in In re Benthin Management GmbH, 37 U.S.P.Q.2d 1332 (T.T.A.B. 1995), laid out five factors, now collected in the Trademark Manual of Examining Procedure (TMEP) § 1211:

The degree of the surname's rarity. A common surname (Johnson, Garcia) reads more obviously as a last name than a rare one. But rarity is a factor, not a free pass, more on that in a moment.
Whether anyone connected with the applicant has that surname. If the company founder bears the name, that connection can reinforce a surname meaning, especially if the applicant promotes it.
Whether the surname has any recognized non-surname meaning. This is the big escape hatch. "Summit," "Diamond," or "Bridge" carry strong ordinary meanings that can overwhelm any surname significance.
Whether the word has the "look and feel" of a surname, that is, the structure and pronunciation people associate with last names.
The effect of any stylization or design elements, which matters only when the mark actually contains a design.

The Board has been careful to call the Benthin factors "guidelines for what evidence to consider," not "a rigid test." Adlon, 120 U.S.P.Q.2d at 1719. Each factor is not always relevant; the USPTO weighs whatever facts bear on public perception, decides each case on its own merits, and resolves genuine doubt about whether a term is primarily merely a surname in favor of the applicant. Benthin, 37 U.S.P.Q.2d at 1333. That tie-goes-to-the-applicant rule is a small but real gift, and a good response to a surname refusal leans on it.

Let us walk through the factors that do the heavy lifting, because the cases that flesh them out are genuinely instructive (and a few are delightful).

Rarity Is Not a Safe Harbor

The intuition is that a rare surname is less likely to register with the public as a surname. Often true. But the TTAB has repeatedly held that even a rare surname is unregistrable if its primary significance to the public is still that of a surname. In re Eximius Coffee, LLC, 120 U.S.P.Q.2d 1276 (T.T.A.B. 2016).

The most memorable illustration is BELUSHI'S. An applicant sought to register it for restaurant and travel services. The evidence showed only five people in the entire United States with the surname Belushi, vanishingly rare. And the Board affirmed the refusal anyway, precisely because the performers John and Jim Belushi were so widely known that the public would still read "Belushi" as a surname. In re Beds & Bars Ltd., 122 U.S.P.Q.2d 1546 (T.T.A.B. 2017). The lesson: media exposure can make even a near-unique name read as "obviously a last name." A famous bearer is worth more than a thousand directory listings.

The flip side gives applicants ammunition. Examiners frequently support surname refusals with telephone-directory or commercial-database hits, and the Board has been pointed about the limits of that evidence. Telephone-directory evidence alone is not determinative. Kahan & Weisz, 508 F.2d at 832-33. References buried in obscure trade journals or limited-circulation publications carry little weight, In re Joint-Stock Company Baik, 84 U.S.P.Q.2d 1921 (T.T.A.B. 2007), and even a large raw count can fail if it does not show genuine public exposure to the term as a surname. In In re Suphachatwong Innovation Co., the Board reversed a refusal where 96 articles mentioning people named with the proposed mark still failed to show broad public exposure of a rare surname. And there is a clever judo move available: because modern surname databases are enormous, an applicant can sometimes argue that turning up only a handful of hits in a database of hundreds of millions actually proves the name is rare. In re United Distillers PLC, 56 U.S.P.Q.2d 1220 (T.T.A.B. 2000).

The Connection to the Applicant

If the term is the surname of someone connected with the applicant, that tends to push toward a surname finding, but only when the applicant promotes the connection so the public is aware of it. The Board affirmed refusals where companies trumpeted the founder's name. In In re Integrated Embedded, 120 U.S.P.Q.2d 1504 (T.T.A.B. 2016), the mark was the founder's name and the website touted him as the company's "namesake"; in Eximius, the family name was tied to "premium family coffee." But where there is no evidence the applicant publicized the connection, the factor can be neutral or even cut the applicant's way. In re Adlon, 120 U.S.P.Q.2d at 1722 (the connection enhances surname perception only "if . . . that association were promoted to the public"); In re Sava Research Corp., 32 U.S.P.Q.2d 1380 (T.T.A.B. 1994) (weighing the absence of a connection in the applicant's favor).

There is a practical irony lurking here for the founder who wants to brand the business around their own name. The more lovingly your "About Us" page tells the story of you, the namesake, the more you hand the examiner evidence that the public sees your mark as a surname. It rarely makes sense to bury your founder story to dodge a refusal, but it is worth knowing that the marketing and the registration strategy can pull in opposite directions.

The Escape Hatch Within the Escape Hatch: Other Meanings

When a mark has a readily recognized meaning apart from its surname significance, the odds of escaping Section 2(e)(4) jump. This factor is, in practice, the most powerful, and the case law is a treasure trove of arguments. An applicant can point to:

Dictionary meaning. A surname that is also a common English word (FALCON, KING, SUMMIT) often clears the bar outright.
Foreign-language meaning. Under the doctrine of foreign equivalents, the examiner must consider what the word means in another language, if an ordinary American purchaser would likely recognize it. The Board reversed a refusal of FIORE, a common Italian surname, because consumers would recognize it as the Italian word for "flower." In re Isabella Fiore, LLC, 75 U.S.P.Q.2d 1564 (T.T.A.B. 2005). But the doctrine has limits: the Board affirmed the refusal of WEISS (German for "white") because American buyers were unlikely to stop and translate it. In re Weiss Watch Co., 123 U.S.P.Q.2d 1200 (T.T.A.B. 2017).
Geographic significance. The Board reversed the refusal of FAIRBANKS because its geographic meaning outweighed its surname meaning. In re Colt Industries Operating Corp., 195 U.S.P.Q. 75 (T.T.A.B. 1977). (Watch out, though: a place name that exists because of a family can cut the other way.)
Acronym or coined origin. Where an applicant credibly showed that SAVA stood for "Securing America's Valuable Assets," that contributed to a reversal. Sava Research, 32 U.S.P.Q.2d 1380. Likewise the arbitrary GARAN mark, shown to derive from "guarantee." In re Garan, Inc., 3 U.S.P.Q.2d 1537 (T.T.A.B. 1987).
Literary, historical, or pop-culture references. A reversal of HACKLER rested partly on the applicant's promotional materials tying the name to a character in an Irish poem. United Distillers, 56 U.S.P.Q.2d 1220.

One crucial caveat that snares unrepresented applicants: you must back up the alternative meaning with evidence and a credible argument about how it affects public perception. Simply finding an obscure dictionary entry will not do. The Board affirmed a refusal where the only "other meaning" was a relatively obscure card game "unlikely to be known to purchasers." In re Nelson Souto Major Piquet, 5 U.S.P.Q.2d 1367 (T.T.A.B. 1987). The argument has to land with real consumers, not just a lexicographer.

Reading the Whole Mark: Improper Dissection, Initials, and Add-Ons

Here is a subtlety that opens doors for full personal names in particular. The examiner must consider the mark in its entirety and may not surgically extract the surname and analyze it alone. Improper dissection is itself a ground for reversal. In re Hutchinson Technology Inc., 852 F.2d 552, 554 (Fed. Cir. 1988) (reversing where the examiner treated HUTCHINSON TECHNOLOGY as two parts); In re Standard Elektrik Lorenz AG, 371 F.2d 870, 873 (C.C.P.A. 1967) (SCHAUB-LORENZ).

From that whole-mark rule flow several reliable paths around the surname bar:

First name plus surname, or initials plus surname. A mark that reads as a complete personal name, rather than just a last name, is generally not "primarily merely a surname." Two initials with a surname tipped the scales in In re P.J. Fitzpatrick, Inc., 95 U.S.P.Q.2d 1412 (T.T.A.B. 2010), and In re Yeley, 85 U.S.P.Q.2d 1150 (T.T.A.B. 2007) (J.J. YELEY). A single initial is weaker, sometimes enough, sometimes not, and the TMEP says there is no per se rule, but two initials or a full given name is a strong play. This is why, for many individuals, applying for JANE DOE rather than DOE is the smarter and easier path.
Two surnames. A mark made of two surnames typically escapes Section 2(e)(4) because the public reads it as a name, not a single surname. Standard Elektrik, 371 F.2d at 873.
Non-generic added wording. Adding source-identifying matter can save the mark, considered as a whole.

But beware the additions that do not help, because applicants reach for them constantly and the Board swats them down:

Titles like "Mrs.," "Dr.," or "MD" can actually enhance surname significance. TMEP § 1211.01(b)(iv).
Possessives and plurals do not diminish it, and may even reinforce it; MCDONALD'S was still primarily merely a surname before it acquired distinctiveness. In re McDonald's Corp., 230 U.S.P.Q. 304 (T.T.A.B. 1986).
Business designations and generic terms ("Inc.," "& Sons," "Group," "Pharmaceuticals," "Law Group") add nothing. A surname plus a generic term for the goods or services is still just a surname. Integrated Embedded, 120 U.S.P.Q.2d at 1507 ("group" in BARR GROUP); Mitchell Miller, P.C. v. Miller, 105 U.S.P.Q.2d 1615 (T.T.A.B. 2013) ("law group" in MILLER LAW GROUP); In re Hamilton Pharmaceuticals, Ltd., 27 U.S.P.Q.2d 1939 (T.T.A.B. 1993) ("pharmaceuticals" in HAMILTON PHARMACEUTICALS).

Stylization and Design

A surname displayed with a sufficiently distinctive design or stylization may carry the mark over the line, because the design creates a separate commercial impression. TMEP § 1211.01(b)(ii). But minor flourishes, all lowercase letters, a plain typeface, will not do it. In re Pickett Hotel Co., 229 U.S.P.Q. 760 (T.T.A.B. 1986). This factor only comes into play if your mark actually includes design elements, so a plain word mark in standard characters cannot lean on it.

A Worked Example: Same Statute, Opposite Outcomes

Let us make this concrete with two invented founders. (Both hypothetical.) Priya Ramaswamy launches artisanal hot sauces under the plain word mark RAMASWAMY. The examiner pulls database evidence showing thousands of people with the name, finds no dictionary or foreign meaning that an ordinary American buyer would recognize, notes that Priya's website proudly features her as the namesake, and concludes the mark is primarily merely a surname. Refused under Section 2(e)(4).

Her friend Dustin Falcon launches a competing line under FALCON. Same analysis, different wall: "falcon" is an ordinary English word for a bird of prey, with a dictionary meaning strong enough that the public will not perceive the mark as primarily merely a surname. Dustin sails through. One word's dictionary life is the whole difference.

Now suppose Priya regroups and files PRIYA RAMASWAMY as a full personal name, with a distinctive script logo. She has improved her odds twice over, by giving the examiner a complete personal name to read in its entirety, and by adding stylization that may create a separate commercial impression. The mark might still draw a refusal, but she has handed herself two real arguments she did not have before.

The takeaway to internalize: the more your name doubles as an ordinary word, a place, or a foreign term, the easier your path; the more your name is just a name, the more work you face. And that work has a name of its own, secondary meaning.

The Escape Hatch: Secondary Meaning and Acquired Distinctiveness (Section 2(f))

If your surname is primarily merely a surname, you are not doomed. You are simply pointed toward a different door, the one marked Section 2(f), 15 U.S.C. § 1052(f). Section 2(f) says that a mark which is otherwise barred because it is descriptive, geographically descriptive, or primarily merely a surname, may nonetheless be registered if it "has become distinctive of the applicant's goods in commerce." That phrase, "become distinctive," is the statutory name for what lawyers and judges usually call secondary meaning or acquired distinctiveness.

Here is the idea in everyday terms. Trademark law sorts marks along a spectrum of distinctiveness. Coined, fanciful, arbitrary, and suggestive marks (KODAK, APPLE for computers) are inherently distinctive, protectable from the moment they are used because consumers instantly read them as source identifiers. Surnames are not on that part of the spectrum. Like descriptive terms, a surname is protectable only if it acquires distinctiveness through use, until consumers "come to associate the mark uniquely with a specific source." That is the heart of the doctrine; see Trademark Litigation: Secondary Meaning (Acquired Distinctiveness) (Practical Law) and the spectrum analysis in Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137, 1149 (9th Cir. 2011).

When the public first hears "McDonald's" in a vacuum, they hear a surname, the family name of two brothers. But after decades of golden arches and billions of burgers, "McDonald's" no longer makes the average shopper think "a family named McDonald." It makes them think "the fast-food restaurant." The name has acquired a secondary meaning, a brand meaning, layered on top of its primary (surname) meaning. Once that happens, the name does the real work of a trademark, identifying a single source, and it earns protection.

The Roster of Surnames That Earned Their Stripes

The register is full of surnames so commercially distinctive that no one thinks of them as last names anymore:

FORD for motor vehicles. Henry Ford was a man; FORD is now a global brand.
HERSHEY for chocolate. Milton Hershey was a person; the name now means the candy.
MCDONALD'S for restaurants, as discussed.
DELL for computers, DISNEY for entertainment, BOEING for aircraft, JOHNSON & JOHNSON for consumer health. Each began as a founder's surname; each acquired brand meaning through enormous, sustained, exclusive use.

What unites these is not that the families were special. It is that the use was. Each poured years of advertising, sales, and consistent presentation into the name until the public's association flipped from "person" to "product." That flip is the essence of secondary meaning.

How You Actually Prove Secondary Meaning

Proving acquired distinctiveness is an evidentiary exercise. The applicant bears the burden, and the amount of proof scales with how surname-y the mark is. The USPTO gives you three on-ramps under Trademark Rule 2.41 and TMEP § 1212:

The five-year presumption. If you declare under oath that you have used the mark "substantially exclusively and continuously" in commerce for the five years before claiming distinctiveness, the USPTO may accept that as prima facie evidence of acquired distinctiveness. This is the simplest route and the one most surname applicants aim for. Mind the two adverbs: substantially exclusively (you, and essentially not competitors, have been using it) and continuously (no big gaps). And note the ceiling, five years is a floor for a prima facie showing, not a guarantee; a very common surname on ordinary goods can need far more.
Prior registrations. If you already own a registration for the same mark on related goods, you can sometimes rely on it as evidence the mark has become distinctive.
Actual evidence. When five years is not enough, you marshal direct proof. The categories the courts and Board credit (drawn from the secondary-meaning case law) include:
- Consumer surveys, the gold standard, showing that a meaningful share of relevant consumers associate the mark with a single source.
- Length and manner of use, and advertising expenditures (how much, how long, how prominently the name is featured).
- Sales volume.
- Unsolicited media coverage, which shows the public encountering the name as a brand.
- Customer and dealer testimony about how the trade perceives the name.
- Evidence of intentional copying, which courts treat as circumstantial proof that the copier saw value in the source association.

The more your name is in the public eye, the easier all of this becomes, which is exactly why celebrities and designers tend to clear the surname bar so readily. A famous person can build secondary meaning almost overnight through saturation publicity; an unknown small business may need a decade and a thick record.

The Supplemental Register: The Consolation Prize Worth Having

If you cannot yet prove secondary meaning, there is a fallback called the Supplemental Register, a secondary federal register for marks that are capable of becoming distinctive but have not gotten there yet, including primarily-merely-a-surname marks. A Supplemental Registration does not give you the full arsenal of the Principal Register (no presumption of validity, no constructive nationwide notice, no path to incontestability), but it lets you use the coveted ® symbol, appears in USPTO searches to deter later filers, and gives you a federal basis to sue. For a new business built around a founder's surname, parking the mark on the Supplemental Register while you accumulate five years of use is a perfectly respectable strategy, and after five years you can re-file for the Principal Register under Section 2(f). We unpack the broader filing mechanics in our guide to the trademark process and the step-by-step trademark registration guide.

The Second Hurdle: You Cannot Trademark a Living Person's Name Without Consent (Section 2(c))

Now to the other engine of name-trademark law, and the one people most often forget. Section 2(c) of the Lanham Act, 15 U.S.C. § 1052(c), bars registration of a mark that "[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent." It also protects deceased Presidents during the lifetime of a surviving spouse.

Read that carefully, because it does two jobs. First, it protects you from having your name commercialized by someone else without your say-so. Second, and this is the part that surprises applicants, it can require you to document your own consent when you trademark your own name, and it can flat-out block you from registering a mark that points to someone else who is still alive.

When Section 2(c) Bites

Section 2(c) is triggered when the mark would be recognized by the public as identifying a particular living individual. There are two main flavors:

The person is famous enough that the public connects the mark to them. Try to register "OBAMA" for t-shirts or "BEYONCÉ" for perfume, and the public instantly links the mark to a specific living person, so you need that person's written consent. This is the rule that keeps strangers from cashing in on celebrities.
The person is publicly connected to the goods. Even a less-famous name can trigger 2(c) where the context points to a specific living individual associated with the products or services.

For your own name, the practical upshot is simple. When you apply to register a mark that is your own name, the USPTO will typically require a statement consenting to registration, and you, as both the applicant and the named individual, supply it. Usually a formality. The friction comes when the name is not clearly your own, or when more than one living person could plausibly claim it.

Vidal v. Elster: The Supreme Court Blesses the Names Clause

Section 2(c) recently took a trip to the Supreme Court, and the story is a good one. An entrepreneur named Steve Elster tried to register "TRUMP TOO SMALL" for shirts, a political jab referencing then-candidate Donald Trump. The USPTO refused under Section 2(c), because the mark used the name of a particular living individual without his consent. Elster argued the refusal violated his First Amendment right to engage in political speech. The case became a flashpoint, because two earlier decisions, Matal v. Tam, 582 U.S. 218 (2017), and Iancu v. Brunetti, 588 U.S. 388 (2019), had struck down other Lanham Act bars (the disparagement clause and the immoral-or-scandalous clause) as unconstitutional viewpoint discrimination.

In Vidal v. Elster, 602 U.S. 286 (2024), the Court unanimously upheld the names clause. Unlike the bars in Tam and Brunetti, Section 2(c) is viewpoint-neutral, it applies whether you flatter or criticize, and it is content-based only in a way consistent with the long historical tradition of trademark law restricting the appropriation of other people's names. The names clause survived. The takeaway for our purposes: the consent requirement is alive, well, and constitutionally blessed. You cannot register a mark comprising a living person's name without their consent, full stop, even if your motive is political commentary. (We discuss Tam and Brunetti in detail in our piece on the Washington Redskins trademark troubles.)

The Double Whammy: When 2(c) and 2(e)(4) Stack

Here is where it gets genuinely tricky, and where real applicants get tangled. Imagine Marcus Webb, a rising chef, who wants to register WEBB for a line of frozen meals. (Hypothetical.) He faces both obstacles. Section 2(e)(4) says WEBB is primarily merely a surname, so he needs secondary meaning. And if the public would recognize WEBB as identifying him in particular, or if there is another famous living Webb in the food world, Section 2(c) may demand consent. The provisions are independent: a name can be registrable as to distinctiveness yet blocked for lack of consent, or fully consented-to yet refused as a bare surname without secondary meaning. A good clearance analysis, of the kind we describe in our guide on how to conduct a comprehensive trademark clearance search, checks for all of these landmines before a dollar is spent on branding.

Celebrity Branding: The Names That Became Empires

Nowhere is name-trademarking more vivid than in celebrity branding, where a personal name is often the entire business model. Here are illustrative stories, real ones from the public record, that show the rules in action.

Kim Kardashian and the Kardashian Name Machine

Few families have monetized a surname like the Kardashians. "KKW BEAUTY," "SKIMS," "KIM KARDASHIAN," and a galaxy of related marks have been filed and registered over the years. The saga illustrates two things at once. First, the consent dimension: because each sister is a living individual whose name identifies her, applications built around their names implicate Section 2(c), and the applications supply the necessary consent (and reflect coordination among the family's businesses). Second, the secondary-meaning dimension: "Kardashian" is, etymologically, a surname, but through relentless media presence the name has acquired enormous commercial distinctiveness, making the acquired-distinctiveness showing comparatively easy, Beds & Bars in fast-forward. The Kardashian brands also illustrate the aggressive policing side of name marks; the family has been notably willing to send cease-and-desist letters and sue over uses of their names. (If you are on either end of that exchange, see drafting a trademark cease-and-desist letter and responding to a trademark cease-and-desist letter.)

Michael Jordan: When the Name Is the Brand

"JORDAN" and the "Jumpman" silhouette are among the most valuable name-based marks on earth. Jordan's brand also produced a landmark right-of-publicity case (more on that distinction below) when the grocery chain Jewel-Osco ran a congratulatory ad invoking his name and number without authorization. In Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014), the Seventh Circuit held that the ad was commercial speech, not protected editorial content, clearing the way for Jordan's claims. The case is a reminder that a famous name is protected on multiple fronts at once, federal trademark registration and state right-of-publicity law, and that the two tools cover overlapping but distinct ground.

Designers: The Cautionary Tale of Selling Your Own Name

Fashion is where name-trademarks get heartbreaking. Designers build labels around their own names, then sometimes sell the business, and with it the trademark, and later discover they no longer control their own name in commerce. The classic cautionary tale is the Joseph Abboud litigation. Abboud sold his eponymous trademark to a company, then tried to launch a new line using his personal name ("by the award-winning designer Joseph Abboud"). The court enjoined him: he had sold the trademark rights in his name, and using his name to sell competing clothing infringed the very mark he had transferred. See JA Apparel Corp. v. Abboud, which produced multiple opinions including 568 F.3d 390 (2d Cir. 2009). The hard lesson: a trademark in your name is property, and if you sell it, you may lose the right to use your own name to sell goods. Designers from Roy Halston Frowick ("Halston") to Joseph Abboud have learned this the painful way.

This is also why the Donna Karan domain-name story resonates. When a stranger registered "dkny.biz," Karan's company prevailed before WIPO precisely because the DKNY mark, derived from a personal name, had acquired such powerful distinctiveness that the registration was deemed bad-faith cybersquatting. Strong name marks are valuable enough that bad actors target them, which is the whole reason to register in the first place.

The McDonald Brothers: The Original Surname Empire

We have invoked McDonald's already, but the origin story is too good to skip. Richard and Maurice McDonald built a single drive-in; Ray Kroc franchised it into an empire and eventually bought out the brothers. The surname was once, formally, just a surname, the TTAB said as much in In re McDonald's Corp., 230 U.S.P.Q. 304 (T.T.A.B. 1986). Today it is so distinctive that the company has policed the "Mc" prefix across unrelated industries, sometimes overreaching (the European "MCDONALD'S v. SUPERMAC'S" dispute cost McDonald's some EU rights for non-use). A surname became one of the most famous trademarks on the planet, the ultimate proof of what acquired distinctiveness can do, and a reminder that even the mightiest name mark must keep using the mark to keep it.

Trademark in Your Name Versus the Right of Publicity: Two Different Tools

This is the single most important conceptual distinction in the whole subject, and people conflate the two constantly. Trademark and the right of publicity are different legal tools that both touch personal names, and you often want both.

A trademark in your name is a federal (and sometimes state common-law) right that protects your name as a source identifier for particular goods or services. It is about preventing consumer confusion. It is tied to use in commerce on specific goods, governed by the Lanham Act, registered at the USPTO, and it can last forever as long as you keep using it. Infringement turns on likelihood of confusion, the question whether consumers would be confused about who stands behind the goods. We cover that confusion analysis in our deep dive on navigating the maze of trademark confusion.

The right of publicity, by contrast, is overwhelmingly a creature of state law. There is no general federal right-of-publicity statute; instead, more than 30 states recognize the right, some by statute, some at common law, and some both, with the elements and even the terminology varying significantly from state to state. It protects your right to control the commercial use of your identity, your name, likeness, voice, signature, and persona, regardless of whether anyone is confused about source. It grew out of the privacy torts (particularly the tort of appropriation) and has matured into something the law mostly treats as a property right protecting the economic value of your identity, as opposed to the dignity-protecting privacy interest from which it sprang. (See generally the Practical Law Right of Publicity: Overview.)

The two anchor states are California and New York, because that is where the celebrities live. California protects living persons under Cal. Civ. Code § 3344, the deceased under § 3344.1, plus a parallel common-law right. New York routes the right through its privacy statute, N.Y. Civ. Rights Law §§ 50 and 51, a quirk the Court of Appeals confirmed in Stephano v. News Group Publications, Inc., 485 N.Y.S.2d 220 (1984), and its 2021 postmortem statute, § 50-f, explicitly calls the postmortem right a property right. Tennessee's "ELVIS Act" and Indiana's unusually broad statute round out the strong-protection jurisdictions, and most states recognizing the right also recognize a postmortem right that survives death and can be inherited, which is why the estates of long-dead celebrities still license their images. (For who controls those rights after death, see who will inherit your intellectual property.)

The right of publicity is what lets Bette Midler sue Ford for hiring a sound-alike to imitate her voice, Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), and Vanna White sue over a robot evoking her persona, White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992). It is also the front line of the deepfake and AI-avatar fights now reshaping the field. For the full treatment, see our companion articles on right of publicity basics and the right of publicity meets digital doubles.

Here is the cheat sheet:

Trademark = source identifier, tied to specific goods/services, federal registration available, requires use in commerce, infringement = likelihood of confusion, potentially perpetual.
Right of publicity = control over commercial use of your identity, state law, no registration, no "use in commerce" requirement, infringement = unauthorized commercial appropriation, often survives death.

A celebrity launching a fragrance typically relies on a trademark to brand the bottle and stop knockoffs, and the right of publicity to stop unauthorized endorsements and look-alike ads. The tools complement each other. When you "protect your name," good counsel thinks about both. (One technical wrinkle worth knowing: the two regimes occasionally collide with federal copyright law, and courts wrestle with whether the Copyright Act preempts a right-of-publicity claim, a recurring problem in entertainment cases that is well beyond our scope here.)

What If Someone Else Trademarks Your Name?

This is the nightmare scenario, and it happens more than you would think. You have been quietly building a business or a creative career under your own name, and one day you discover that someone else, a former partner, an opportunistic filer, or a genuine stranger who happens to share your name, has registered (or applied to register) your name as a trademark. What now? You have more options than you might fear.

First, breathe and assess priority. Trademark rights in the United States generally flow from use in commerce, not from registration alone. The first to use a mark in connection with goods or services usually has superior rights over a later user, even a later registrant. This common-law principle, which we explore in trademark rights under common law, means that if you were genuinely using your name as a brand before the other person, you may be the senior user with the stronger claim. The geographic-rights doctrine from United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918), governs the messy cases where two innocent users in different regions both have rights, a topic we cover in our analysis of Stone Creek v. Omnia.

Second, consider Section 2(c) as a sword. The consent requirement protects you. If the registrant's mark "comprises" your name, identifies you, and you never gave written consent, that registration may be vulnerable to opposition (challenging an application before it registers) or cancellation (attacking an existing registration) before the TTAB under Section 2(c). These proceedings function much like litigation, with pleadings, discovery, and briefing; our guide to discovery practice in TTAB proceedings explains how those fights unfold.

Third, deploy the right of publicity. If the other party is commercially exploiting your identity, a state-law right-of-publicity claim may give you a remedy that does not even require you to own a trademark, and in most states it is available regardless of how famous you are.

Fourth, watch for cybersquatting. If the appropriation is a domain name, as in the Morgan Freeman and Donna Karan stories, the Anticybersquatting Consumer Protection Act (15 U.S.C. § 1125(d)) and the faster, cheaper Uniform Domain-Name Dispute-Resolution Policy (UDRP) administered through WIPO and other providers offer paths to recover the domain. We walk through the UDRP route in how to file a UDRP complaint for domain name disputes.

Fifth, sometimes you negotiate. Two people genuinely named "Brooks" may each have legitimate interests, and the resolution may be a coexistence or consent agreement carving out fields of use rather than a winner-take-all fight. Not every name dispute has a villain.

The practical moral: do not assume a registration certificate beats your prior, real-world use. Get a clear-eyed assessment of who has priority and which tools fit your facts before you panic or capitulate.

A Practical Roadmap: How to Trademark Your Own Name the Right Way

Suppose you have read this far and you do want to turn your name into a registered trademark, maybe you are a designer, a consultant, an author, a coach, or a founder whose name is the brand. Here is the sensible sequence.

Step 1: Decide what goods or services the name will brand. A trademark is never your name "in the air." It is your name for something, JANE DOE for cosmetics, or for legal services, or for cookbooks. Pin down the specific goods or services, because everything (registrability, scope, conflicts) flows from that. Our discussion of when to trademark your brand helps founders think about scope and timing, and our overview of USPTO trademark classes explains the classification system you will file under.

Step 2: Run a real clearance search. Before you invest, search the USPTO database and common-law sources for conflicting marks, including other people with your name already operating in your field. A name that is fine for cosmetics may be blocked for restaurants. See how to conduct a comprehensive trademark clearance search and the broader overview in trademark basics.

Step 3: Confront the surname question honestly, and shape the mark. Ask: is my name primarily merely a surname, or does it carry other meaning? Run your own informal Benthin analysis. If it is a pure surname, decide between (a) building toward a Section 2(f) secondary-meaning showing, (b) starting on the Supplemental Register and migrating after five years, or (c) reshaping the application, filing the full personal name or adding distinctive stylization to give yourself the whole-mark and design arguments. If your name has built-in non-surname meaning (you are lucky enough to be named "River" or "Steele"), you may avoid the bar entirely.

Step 4: Handle the consent paperwork. Because the mark is your own name, be ready to provide the Section 2(c) written consent (usually a simple statement that you, the named living individual, consent to registration). If the name could point to someone else alive, stop and get their consent or rethink the mark.

Step 5: Choose your filing basis and file. You can file based on actual use in commerce (Section 1(a)) if you are already selling under the name, or on a bona fide intent to use (Section 1(b)) to reserve rights before you launch, a powerful tool for founders who want to lock in a priority date. The mechanics are in our trademark registration guide and how to file a trademark application with the USPTO.

Step 6: Survive examination. Expect a possible Office Action, a letter from the examiner raising the surname refusal, a likelihood-of-confusion refusal under Section 2(d), or a request for the consent statement. You generally have a window (historically six months, now sometimes shorter under the Trademark Modernization Act) to respond, and a thoughtful response to a surname refusal works through the Benthin factors, challenges weak directory evidence, and submits affirmative proof of any alternative meaning. Responding well is its own craft; our walkthroughs of the trademark process and the answers in our trademark FAQs cover the common refusals.

Step 7: Maintain and police. Registration is the beginning, not the end. You must file maintenance documents (the Section 8 declaration of continued use, the Section 9 renewal, and ideally the Section 15 declaration of incontestability) over the years, and you must actually keep using the mark, recall McDonald's losing EU rights for non-use, and you must police infringers to keep the mark strong. Letting others use your name erodes the very distinctiveness you fought to build.

Key Takeaways

If you remember nothing else, remember these:

Yes, you can often trademark your own name, but it is legally harder than trademarking an invented word, because the Lanham Act distrusts monopolies over surnames.
Section 2(e)(4) bars registration of a mark that is "primarily merely a surname" on the strength of the name alone. The USPTO applies the five-factor Benthin test, and the more your name doubles as an ordinary word, a place, or a foreign term, or reads as a full personal name, the easier your path.
Section 2(f) is the escape hatch: prove secondary meaning (acquired distinctiveness), often via five years of substantially exclusive use or direct evidence (surveys, advertising, sales, media), and your surname can register. McDonald's, Ford, and Hershey all walked this road.
Section 2(c) forbids registering a mark that comprises a living person's name without written consent, a rule the Supreme Court upheld in Vidal v. Elster, 602 U.S. 286 (2024). It protects you from others and requires you to document consent for your own name.
Trademark is not the right of publicity. A trademark protects your name as a source identifier for goods/services (federal, confusion-based, potentially perpetual); the right of publicity protects commercial use of your identity (state law, appropriation-based, often surviving death). Sophisticated name protection uses both.
If someone else grabs your name, priority from prior use, Section 2(c), the right of publicity, and anticybersquatting tools may all be on your side. A registration certificate does not automatically beat your earlier real-world use.

Frequently Asked Questions

Can I trademark my first name, not just my surname? Possibly, and a first or full name is often easier than a bare surname. The "primarily merely a surname" bar in Section 2(e)(4) targets surnames, so a first name or full personal name is not automatically refused on that ground; a mark that reads as a complete personal name (or a surname preceded by initials) is generally not "primarily merely a surname." See In re P.J. Fitzpatrick, Inc., 95 U.S.P.Q.2d 1412 (T.T.A.B. 2010). But a first name used alone may face a different objection, examiners sometimes refuse a common first name as merely ornamental or lacking source significance, and a full personal name still triggers the Section 2(c) consent rule if it identifies a living person. The cleanest cases are distinctive full names used consistently as a brand for specific goods or services.

How long does it take for a surname to acquire secondary meaning? There is no fixed clock. The statute offers a five-year presumption of acquired distinctiveness for "substantially exclusive and continuous" use, but five years is a floor for a prima facie showing, not a guarantee, and a very common surname on ordinary goods may need far more than time alone, it may need surveys, advertising data, sales figures, and media coverage. A famous person can build secondary meaning almost overnight through saturation publicity; an unknown small business may need a decade and a thick evidentiary record. The harder the name, the heavier the proof, and that scaling is deliberate.

Do I need my own consent to trademark my own name? In practice, yes, as a formality. Because Section 2(c) bars registering a mark comprising a living individual's name without written consent, the USPTO will typically require a consent statement, and you, as both the applicant and the named individual, supply it. It is rarely an obstacle when the name is genuinely your own. The provision becomes a real barrier when the name points to someone else who is alive (a celebrity, a co-founder, a relative), because then you need their consent, and Vidal v. Elster confirms there is no First Amendment workaround.

My surname is really rare. Doesn't that mean it isn't "primarily merely a surname"? Not necessarily. Rarity is one Benthin factor, and it helps, but the TTAB has refused even vanishingly rare names when their primary significance to the public is still a surname. The famous example is BELUSHI'S: only five people in the U.S. bore the name, yet the refusal stuck because the Belushi performers made the public read it as a last name. In re Beds & Bars Ltd., 122 U.S.P.Q.2d 1546 (T.T.A.B. 2017). Conversely, you can sometimes turn a giant database to your advantage, arguing that a handful of hits among hundreds of millions of records proves the name is rare. The controlling question is always public perception, not the raw count.

What is the difference between trademarking my name and registering the right of publicity? You do not "register" a right of publicity, it is an automatic state-law right to control the commercial use of your identity, with no application or office involved (and in most states it protects everyone, not just celebrities). A trademark, by contrast, is something you register at the USPTO for specific goods or services and must keep using and maintaining. The right of publicity stops unauthorized commercial use of your persona even without consumer confusion; a trademark stops uses likely to confuse consumers about source. They overlap but are not interchangeable, and serious name protection usually deploys both.

Someone registered a domain with my name. Is that trademark infringement? It depends on whether your name functions as a trademark and whether the registrant acted in bad faith. If your name has trademark significance (often true for performers, designers, and established professionals) and the domain was registered to profit from your goodwill, you may have remedies under the Anticybersquatting Consumer Protection Act (15 U.S.C. § 1125(d)) or the faster UDRP arbitration, the very tools Morgan Freeman and Donna Karan's company used to recover their domains. If your name has no commercial significance and the registrant has a legitimate interest (it is also genuinely their name, say), your options narrow considerably.

Can I lose the right to use my own name if I sell my business? Yes, and this trips up designers and founders constantly. A trademark in your name is property. If you sell the business and assign the mark, you may be enjoined from later using your own name to sell competing goods, exactly what happened to designer Joseph Abboud in JA Apparel Corp. v. Abboud, 568 F.3d 390 (2d Cir. 2009). Before you sell an eponymous brand, negotiate carefully and in writing about whether and how you may use your personal name afterward (for example, in biographical or "designed by" references rather than as a competing brand). This is a place to involve experienced counsel.

Is a trademark in my name worth the cost if I am not famous? Often, yes, if your name is your business. Consultants, authors, coaches, artists, and founders whose names front their brands gain real value from federal registration: nationwide constructive notice, a presumption of validity, the ® symbol, easier enforcement, and a deterrent that shows up in others' clearance searches. The Supplemental Register offers a budget-friendly starting point while you build the secondary meaning needed for the Principal Register. The calculus is the same as for any brand, the cost of protecting now weighed against the cost of rebranding later if someone blocks you.

The examiner refused my mark as primarily merely a surname. Can I fight it? Often, yes. A surname refusal is not the end. You respond to the Office Action by working through the Benthin factors and submitting evidence: dictionary or foreign-language meanings, geographic or historical significance, evidence the name is rare, arguments that the examiner improperly dissected a full personal name or two-surname mark, and (if applicable) distinctive stylization. You can also scrutinize and challenge the examiner's directory evidence as duplicative, conclusory, or drawn from foreign or obscure sources. If none of that works on the merits, you can claim acquired distinctiveness under Section 2(f), accept the Supplemental Register, or appeal to the TTAB. Because doubt is resolved in the applicant's favor, a well-supported response wins more often than applicants expect.

This article is general information, not legal advice. Trademark and right-of-publicity law turn on specific facts and vary by jurisdiction; consult qualified counsel before acting on anything discussed here.