Why Can Last Names Be Trademark Trouble?

Many businesses are named after their founders, but if your business name is primarily a surname, you could run into trademark challenges. The USPTO generally considers surnames to be not inherently distinctive, meaning they don’t qualify for trademark protection unless you can prove that the mark is more than just a surname.

For example, “Jagger’s Bakery” or “Richards Consulting” may not be eligible for trademark registration unless you can demonstrate one of the following:

• Consumers associate that surname specifically with your business, rather than just recognizing it as a common last name;
• The mark has a secondary meaning, like King standing for the concept of royalty or being the biggest or best, like “I’m a King Bee,” not just being my last name; or
• There are other important words in the mark that make the mark more than just a surname (these have to be words that aren’t generic or descriptive terms).

Big brands like McDonald’s and Ford successfully registered their names because they built strong brand recognition over time, but new businesses using common surnames will face an uphill battle in securing exclusive rights.

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