Recently a friend posted on my Facebook page, “I’m considering trademarking my name. Can I do that?”
Yes you can, but it’s a little complicated. Let’s start with some trademark basics.
There are five ways to describe a potential trademark: fanciful, arbitrary, suggestive, descriptive or generic. Fanciful, arbitrary, and suggestive marks can be registered on what’s called the primary registry of the U.S. Patent and Trademark Office (USPTO) as soon as you’re using them in commerce. When you have a registered trademark, no one can enter the market in your industry and use your trademark or something confusingly similar to it. Generic marks can never be registered. Descriptive marks fall in between these two groups.
Descriptive trademarks describe the product they’re attached to. If you have a descriptive mark, you can put on the USPTO’s secondary registry when you start using it in commerce, but you can’t bump it to the primary registry until have “acquired distinctiveness,” which typically happens after five years of continuous use.
When you name your business after yourself – i.e., John Smith Graphic Design (and your name is John Smith), you have a descriptive trademark. If you’ve only been in business for a short time, the USPTO doesn’t want to give you the exclusive rights to your name in your industry – thus all the other John Smiths who are graphic designers couldn’t call their companies, “John Smith Graphic Design” or something similar to it. They make you wait until you’ve been in business for five years before giving you nationwide exclusivity over your company name in your industry.
So can my friend register a trademark for her name? Probably, but I’d have to take a closer look at her situation to determine how long she’s been using it as a trademark and whether someone else has already registered the same name in the same industry.
If you have any questions about whether you can register your desired trademark, feel free to connect with me on Twitter, Facebook, LinkedIn, Google+, YouTube, or send me an email. You can also subscribe to the firm’s newsletter. If you want more information about Carter Law Firm, please visit the homepage.