Surnames Not Protected Without Secondary Meaning
Trademark applications are often issued a trademark refusal by being merely a surname. At one point, personal names were not allowed trademark protection under trademark laws. The reasoning was that a name is that individual’s personal property and he/she should be free to use their name as a trademark and not have to defend against any claim brought by another with the same name. Recently this has changed. Personal names are now allowed to be protected as trademarks. However, because personal names are not considered to be inherently distinctive, a personal name can only be a trademark if the name has acquired a secondary meaning that identifies the source of the goods or services to the consumers. This means that the owner of the trademark must prove that consumers understand the name associated with the goods or services refer to the owner’s business and not another business. This is a very difficult standard, and a heavy burden to prove.
Examples of Surnames that have gained secondary meaning are: