David Lilenfeld Blog The intellectual property blog of David Lilenfeld

5Feb/110

Is Your Name Also a Trademark?

By David Lilenfeld on February 5, 2011

This blog entry was inspired by Sarah Palin and her daughter, Bristol.  No, I am not about to get political, so keep reading.  Instead, the famous Alaskans have given me an opportunity to write about trademark law's treatment of  personal names.

Sarah and Bristol Palin have applied to the United States Patent and Trademark Office to register their names as trademarks.  Ms. Palin claims she uses SARAH PALIN in connection with providing “[i]nformation about political elections” and “motivational speaking services in the field of politics, culture, business and values.”  Bristol says she uses BRISTOL PALIN in connection with “motivational speaking services in the field of life choices.”  Here are their applications: Sarah/Bristol.

Will the Palins have a hard time obtaining these registrations -- “you betcha”!

A person cannot register her name as a trademark without a showing of “secondary meaning.”  Secondary meaning is a high standard to meet.  In connection with personal names, it is achieved when the public has come to recognize the personal name as a symbol that identifies the service (or good), in contrast to identifying the person.

The mark SARAH PALIN is used to identify a person, not a service.  In other words, the public does not connect the name SARAH PALIN with a particular service, but rather with a particular person, at least not yet.  The same reasoning applies to Bristol, perhaps even more so since she does not have same level of notoriety as her mother.

Secondary meaning tends to grow out of a long association of the name with a particular business.  Secondary meaning requires that, in the public mind, the primary meaning of the name as a word identifying a person has been lost in favor of identifying the business.  Examples of personal names which have acquired secondary meaning – and therefore are protected as trademarks -- are RONALD MCDONALD, HOWARD JOHNSON and, to a lesser extent, MARTHA STEWART. Indeed, it takes time before the name and the business become synonymous in the public mind.

So, if you hear a loud “doggone it” coming from Wasilla, that means the Palins just received a final refusal to register their names as trademarks.  It's on the way.

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