Can You Trademark Person’s Name? What Business Owners Need to Know

Many business owners ask, “Can you trademark person’s name?” The answer is yes, but the process is not always straightforward. Whether it is a founder’s name on a law firm, a chef’s name on a restaurant, a designer’s name on a clothing line, or a coach’s name on a consulting practice, personal names can become powerful brand identifiers. However, the USPTO applies specific rules and legal requirements that can complicate and sometimes prevent registration. 

At Adams Law Office, attorney Sharon Adams handles trademark applications involving personal names regularly, including situations where consent is required, where a last name triggers a surname refusal, and where a business owner wants to use a famous person’s name without that person’s permission. Understanding the rules that govern personal name trademarks, including the landmark 2024 U.S. Supreme Court decision in Vidal v. Elster, is essential for any business owner considering this type of application.

The Basic Question: Can a Personal Name Be a Trademark?

Yes, a personal name can be trademarked. But the path to registration depends heavily on whose name is being used and how. The Lanham Act, which is the federal statute governing trademark law in the United States, sets specific rules around personal names. These rules apply differently depending on whether the name belongs to the applicant, to another living person, to a deceased individual, or to a public figure.

There are several overlapping legal issues that can arise when an applicant tries to register a personal name as a trademark:

• The name may be primarily merely a surname under Section 2(e)(4) of the Lanham Act, which makes it difficult to register without proof of acquired distinctiveness.
• If the name belongs to a living individual other than the applicant, written consent is required under Section 2(c) of the Lanham Act.
• If the name could suggest a false connection with a living or deceased individual, Section 2(a) of the Lanham Act may bar registration.
• If the applicant is applying to register their own name, the rules are somewhat more relaxed, but challenges still exist.

Working through these issues requires careful legal analysis, and getting them wrong leads to office action refusals that cost time and money to resolve. This is why working with an experienced trademark attorney from the beginning is so important when a personal name is involved.

What Is the Consent Requirement Under Section 2(c)?

Section 2(c) of the Lanham Act states that a trademark application must be refused if the mark consists of or comprises the name, portrait, or signature of a particular living individual unless that individual gives written consent. This is not a technicality. It is a substantive legal requirement that applies any time a mark includes a name that identifies a specific living person.

If your trademark includes the name or likeness of a particular living individual and you do not have their written consent, the USPTO will refuse registration. The written consent must be personally signed by the individual whose name or likeness appears in the mark. In a TEAS Plus application, the consent must be included in the initial application.

Some examples of when consent is required:

• A merchandise company applies to register OBAMA PAJAMA using former President Barack Obama’s name. The USPTO requires written consent from Obama because he is a living individual.
• A political activist applies to register a phrase incorporating the name of a sitting president or any living public official without that person’s consent. The USPTO will refuse registration under Section 2(c).
• A company applies to register a mark using the full name of its celebrity spokesperson. Even if the celebrity has orally agreed, the USPTO requires written consent specifically signed by that individual.

Importantly, consent is required regardless of whether the use of the name is flattering or critical. It does not matter whether the applicant intends the mark as a compliment or as political commentary. The names clause applies categorically to any mark that includes a living person’s name without that person’s written consent.

Vidal v. Elster: The Supreme Court Settles the First Amendment Question

For several years, there was genuine legal uncertainty about whether the consent requirement in Section 2(c) could survive a First Amendment challenge. That question was definitively resolved by the United States Supreme Court on June 13, 2024, in Vidal v. Elster.

The case originated with Steve Elster, an attorney and political activist who applied in 2018 to register the trademark TRUMP TOO SMALL for use on shirts and hats. The phrase was inspired by a 2016 Republican primary debate exchange between then-candidate Donald Trump and Senator Marco Rubio. The USPTO examining attorney refused the application under Section 2(c), because the mark included Trump’s name without Trump’s consent. The USPTO also applied Section 2(a), which bars registration of marks that falsely suggest a connection with a living or deceased individual.

Elster appealed, arguing that the names clause in Section 2(c) violated his First Amendment right to free speech. The Federal Circuit Court of Appeals agreed with Elster and reversed the USPTO’s refusal, finding that the names clause was an unconstitutional restriction on speech. The government then appealed to the Supreme Court.

In a unanimous decision written by Justice Clarence Thomas, the Supreme Court reversed the Federal Circuit and upheld the constitutionality of the Lanham Act’s names clause. The Court held that the names clause does not violate the First Amendment. Justice Thomas wrote that the Lanham Act’s name clause has deep roots in American legal tradition, reflecting the common law tradition of prohibiting a person from obtaining a trademark of another living person’s name without consent and thereby protecting that person’s reputation and goodwill.

The Court noted that the names clause is viewpoint-neutral. It applies equally to flattering and unflattering marks. The USPTO had refused registration of trademarks such as WELCOME PRESIDENT BIDEN, I STUMP FOR TRUMP, and OBAMA PAJAMA, all because they contained another person’s name without consent, not because of the viewpoint expressed.

What the Court also made clear is that the refusal to register TRUMP TOO SMALL did not prevent Elster from using the phrase. The ruling only affects the ability to obtain a federal trademark registration. Elster can continue to sell shirts with the TRUMP TOO SMALL phrase. He simply cannot register it as a federally protected trademark without Trump’s written consent.

The Vidal v. Elster decision is now settled law and confirms that any trademark application that includes a living person’s name without written consent will be refused by the USPTO, and that refusal is entirely constitutional.

Trademarking Your Own Name

If you want to trademark your own name, the legal path is more straightforward in some ways and more complicated in others. When you are applying for a trademark that consists of your own name and you are the applicant, consent is presumed. The USPTO will not require you to submit a separate written consent form.

However, registering your own name still comes with potential hurdles.

The Primarily Merely a Surname Problem

If your name consists primarily of a last name, the USPTO may refuse registration under Section 2(e)(4) of the Lanham Act, which bars registration of marks that are primarily merely a surname. The policy rationale is that many people share the same last name, and allowing one person to monopolise a common surname as a trademark would be unfair to others who share that name and who may legitimately want to use it in their own business.

The USPTO evaluates whether a mark is primarily merely a surname by looking at several factors:

• How commonly the term is recognized as a surname by the general public.
• Whether the term has any recognized meaning other than as a surname, such as a dictionary word or geographic term.
• Whether the term has the look, feel, and pronunciation of a surname.
• Whether the applicant is known by that surname.
• The rarity or commonness of the name in the population.

Names like SMITH, JONES, WILLIAMS, or JOHNSON are extremely common surnames and would almost certainly receive a primarily merely a surname refusal if filed alone. Less common names may be treated differently depending on how the public perceives them. Even a relatively uncommon surname can receive a Section 2(e)(4) refusal. In one Trademark Trial and Appeal Board decision, MILLER LAW GROUP was found to be primarily merely a surname for legal services, even though the word miller has other meanings in the English language. The Board found that the primary significance of the term to consumers in the context of legal services was that of a surname.

Overcoming a Surname Refusal Through Acquired Distinctiveness

The most common way to overcome a primarily merely a surname refusal is to claim acquired distinctiveness under Section 2(f) of the Lanham Act. Acquired distinctiveness, also known as secondary meaning, means that through long and exclusive use in commerce, the public has come to associate the name not just as a surname but specifically as a source identifier for your goods or services.

Evidence that can support a claim of acquired distinctiveness includes:

• Five or more years of substantially exclusive and continuous use of the name in commerce.
• Significant advertising and marketing expenditures that prominently feature the name.
• Evidence of strong sales volume and commercial success under the name.
• Consumer declarations attesting to recognition of the name as a specific brand.
• Media coverage and press mentions of the business under the name.

For famous individuals, the name may be considered immediately distinctive, making registration more accessible without requiring extensive evidence of acquired distinctiveness. A celebrity chef, designer, or entertainer with strong national recognition may be able to register their name without extensive secondary meaning evidence, because the public already strongly associates the name with that person’s specific goods or services.

The Supplemental Register as a Strategic Alternative

If you cannot immediately prove acquired distinctiveness, registering a surname mark on the Supplemental Register is another option. The Supplemental Register provides some trademark protections, including the right to use the registration symbol and to place potential infringers on constructive notice, but it does not carry the full legal presumptions of the Principal Register. A registration on the Supplemental Register cannot become incontestable.

Registration on the Supplemental Register can be a strategic stepping stone. After years of continuous and exclusive use in commerce, a business owner may build sufficient evidence of acquired distinctiveness to file a new application on the Principal Register. Learn more about the differences between the Principal and Supplemental Register and which path makes sense for your situation.

Trademarking a First Name or Full Name

Trademarking a first name alone presents a different set of challenges than trademarking a last name. First names are not typically classified as primarily merely a surname, but they may still be considered insufficiently distinctive to function as a trademark on their own, particularly if the first name is extremely common.

The USPTO looks at whether the name as a whole functions as a source identifier. A first name combined with a distinctive design or unique stylisation may be registrable even if the name itself would not be on its own. A first name that has become strongly and exclusively associated with a specific brand through long commercial use can achieve registration and potentially incontestable status. The key is building a clear association in the minds of consumers between the specific name and the specific goods or services offered.

A full name, combining a first name and a last name, is often more distinctive than a last name alone, because the combination of two names is less likely to be shared with many other people. Full personal names used as business brands have a reasonable path to registration, though a surname component within the full name may still draw scrutiny from the examining attorney.

Stage Names, Nicknames, and Pseudonyms

Stage names, nicknames, and pseudonyms are treated similarly to real names under the Lanham Act. If the stage name or pseudonym identifies a particular living individual and someone other than that person is trying to register it, written consent from the identified individual is required. The USPTO applies the same consent analysis regardless of whether the name used is the person’s legal name or a professionally adopted alias.

For the individual themselves, registering a stage name they have used extensively in commerce is generally possible. Artists, musicians, actors, influencers, and public figures who have built their careers and brands under a stage name should strongly consider trademark protection. If someone else registers the same stage name before you do, reclaiming it can be an expensive and difficult process. Filing a trademark application for your professional name early in your career is a sound defensive strategy.

The Right of Publicity: A Related But Separate Protection

Trademark law and the right of publicity are related but distinct legal concepts. The right of publicity is a state-law right that protects a person’s ability to control the commercial use of their name, image, voice, and likeness. It is separate from federal trademark law and varies by state.

Even when a trademark application might otherwise be refused under Section 2(c) of the Lanham Act because the applicant does not have the named person’s written consent, the right of publicity provides a separate and often stronger layer of protection for well-known individuals. Celebrities and public figures have the right to stop others from using their names or images for commercial benefit without consent, regardless of whether a federal trademark registration is at issue.

This means that even if someone attempts to use a creative workaround to register a mark that comes close to a famous person’s name, the underlying right of publicity claim may still expose them to significant legal liability under state law.

When Someone Else Tries to Register Your Name as a Trademark

If another party attempts to register your name as a trademark without your consent, the USPTO’s names clause under Section 2(c) provides an important legal line of defence. As the individual identified by that name, you have legal grounds to object to the application.

Before the application reaches publication, you can file a letter of protest with the USPTO to bring relevant evidence to the examiner’s attention. If the application reaches the publication stage, you have 30 days to file an opposition through the Trademark Trial and Appeal Board. If the mark has already been registered, you may be able to petition for cancellation.

In some cases, the USPTO examining attorney will catch the issue before publication, particularly if the name clearly identifies a recognisable public figure. However, the USPTO cannot always identify every personal name in every application, particularly when the individual is not famous. This is why trademark monitoring after your own registration is established can be a useful additional protection.

If you discover that someone has registered or applied to register your name as a trademark, consult with a trademark attorney immediately. Learn more about your options in our blog: Someone Is Using Your Brand Name: What Can Be Done.

Why Working With a Trademark Attorney Matters for Personal Name Applications

Personal name trademark applications involve multiple overlapping legal issues that require careful legal analysis: the Section 2(c) consent requirement, the Section 2(e)(4) primarily merely a surname bar, the Section 2(a) false connection bar, acquired distinctiveness strategy, right-of-publicity considerations, and clearance search findings. Getting any one of these wrong can result in a refusal, a delay, or an application that is ultimately abandoned.

Online filing platforms cannot provide this level of analysis. They ask you to fill out forms, but they do not evaluate whether your specific name will trigger a surname refusal, whether consent is required, or whether a pre-existing registration for the same name could block your application. Sharon Adams personally reviews every case at Adams Law Office and provides the strategic legal analysis that a personal name application requires.

Before investing in branding, packaging, and marketing built around a personal name, it is worth having a trademark attorney review the specific name and the goods or services you plan to associate with it. A thorough trademark clearance search and a strategic analysis of potential refusal grounds can save significant time and expense down the road. You can also explore our overview of common trademark filing mistakes before you file.

Frequently Asked Questions About Trademarking a Person’s Name

Can I trademark my own name?

Yes, but there are potential obstacles. If your name is primarily a last name, the USPTO may refuse it under Section 2(e)(4) as primarily merely a surname unless you can demonstrate acquired distinctiveness through long and exclusive use in commerce. If your name is a first name, a full name, or a stage name used as a personal brand, registration is generally more attainable, though competition with other uses of the same name may create conflicts.

Can I trademark someone else’s name without their permission?

No. Under Section 2(c) of the Lanham Act, you cannot register a trademark that includes the name of a living individual without that person’s written consent. This applies regardless of whether the use of the name is flattering, critical, or political in nature. The U.S. Supreme Court confirmed this in Vidal v. Elster in June 2024.

What is the Vidal v. Elster case, and why does it matter for trademark applicants?

Vidal v. Elster is a 2024 U.S. Supreme Court decision that unanimously upheld the constitutionality of the names clause in the Lanham Act. Steve Elster had applied to register TRUMP TOO SMALL on shirts without Trump’s consent. The Court held that refusing the application did not violate the First Amendment. The decision is now settled law and confirms that the consent requirement in Section 2(c) will continue to be enforced by the USPTO.

Does the consent requirement apply to famous people’s names?

Yes. The names clause under Section 2(c) applies to all living individuals, whether famous or not. The Vidal v. Elster case itself involved the name of a former U.S. president. The rule applies equally to marks using the names of private citizens and major public figures.

What is a primarily merely a surname refusal, and how do I overcome it?

A primary, merely a surname, refusal is issued under Section 2(e)(4) when the USPTO determines that your mark functions primarily as a last name rather than as a distinctive brand identifier. It can be overcome by proving acquired distinctiveness through evidence of long and exclusive use in commerce, strong sales, advertising efforts, and consumer recognition of the name as a brand, or by filing on the Supplemental Register.

Can I trademark a stage name or nickname?

Yes, if the stage name identifies you and you are the applicant. If the stage name identifies someone else, written consent from that person is required. The same rules about surnames and acquired distinctiveness apply to stage names as they do to legal names.

What happens if someone else has already registered my name as a trademark?

If another party registered your name as a trademark, you may be able to challenge that registration through a cancellation proceeding at the Trademark Trial and Appeal Board. If the application is still pending, you can oppose it during the publication period or file a letter of protest. You should consult with a trademark attorney as soon as you become aware of the issue.

Can I use a deceased person’s name in a trademark?

The Lanham Act’s Section 2(c) consent requirement applies specifically to living individuals. However, Section 2(a) may still bar registration if the mark falsely suggests a connection with a deceased person or their estate. Additionally, state right-of-publicity laws may extend postmortem protections in some jurisdictions.

Does the USPTO automatically identify when a trademark includes a real person’s name?

The USPTO tries to identify names that belong to recognisable individuals, but it cannot catch every case, particularly when the individual is not a well-known public figure. Applicants have a legal obligation to disclose whether the mark includes the name of a living individual and to provide written consent when applicable.

Is the right of publicity the same thing as a trademark?

No. The right of publicity is a state-law right protecting against unauthorised commercial use of a person’s name, image, voice, or likeness. Federal trademark law is a separate system of rights. However, the two often overlap. A business using a celebrity’s name without consent may face both federal trademark refusal and state right-of-publicity liability.

What should I do before filing a trademark application for a personal name?

Work with a trademark attorney to conduct a thorough clearance search, evaluate whether the name may trigger a surname refusal, confirm whether consent from another living individual is required, and review existing registrations for similar names in your class of goods or services. Sharon Adams at Adams Law Office offers a free 15-minute consultation to discuss your situation.

How is a trademark application for a personal name different from one for a business name?

A trademark application for a personal name must address the Section 2(c) consent requirement and the Section 2(e)(4) surname bar, which do not arise in the same way for invented or fanciful business names. The clearance search for a personal name also needs to look at whether the name is already registered by another party in connection with similar goods or services.

Can adding words or design elements to a surname make it registrable?

Yes. Adding distinctive words or unique design elements to a surname can make the overall mark registrable even if the surname alone would not qualify. However, if the additional words are generic or merely descriptive, such as JONES PLUMBING for plumbing services, they may not add enough distinctiveness to overcome a surname refusal. A trademark attorney can evaluate the specific combination and advise on the best strategy.

Why should I work with a trademark attorney rather than an online filing platform for a personal name application?

Online filing platforms do not evaluate whether your specific name will trigger a surname refusal, whether consent is required from another living individual, or whether a pre-existing registration could block your application. Sharon Adams personally handles each case and provides the legal analysis that a personal name application requires. Learn more about why hiring a trademark attorney can save you time, money, and stress.

What is the difference between a trademark for a personal name and a domain name?

A trademark registration protects your brand name in connection with specific goods and services across the United States. A domain name is simply your web address. They are separate legal concepts governed by different rules. If you are building a brand around a personal name, both trademark registration and securing the corresponding domain name are important. Read more about domain names versus trademarks and what to do if your brand name is already taken online.

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