The Name Game

When creating a corporation, many business owners have a preference for using their own surname as the company name. It’s a source of pride and also helps any existing customers identify the goods and services they sell as specific to them. And besides that, everyone should have the right to use their own name, right? But this practice can become problematic when it comes time to trademark the company name.

Surnames generally do not qualify for trademark registration unless the name obtains a secondary meaning related to the company’s goods or services, as in the case of “McDonald's” for fast food. But it generally takes a significant amount of advertising and use over a long period of time to obtain this status, called “acquired distinctiveness” in the trademark world.

And things only get more complicated from there. If a corporate surname does achieve the acquired distinctiveness designation, that name then becomes off-limits to all uses that are similar. So if your name is McDonald and you want to open a sub shop, you’re likely out of luck despite the fact that you are using your own name.

There are a few ways to improve the odds of obtaining approval to register a trademark that includes a surname. In reviewing a mark that includes a surname, the federal trademark office will consider whether your name is unusual and how many people will be affected by the registration. The more unusual the name, the more likely it is to be permitted. The inclusion of other words or designs may also help make your mark more distinctive because those other terms and designs can affect how a consumer perceives the name. And if your surname has a dictionary meaning (it also functions as a word) like “Spray,” it is treated like any other trademark, bypassing the surname blockade altogether.

When it comes to naming your next venture, make sure your pride doesn’t cause you prejudice. If you have questions, please give us a call at (248) 477-6300 or visit our website. We can help.

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