Can you trade mark your personal name?

Introduction

Personal names can be trade marked in Australia in some circumstances. Join the likes of Kylie Minogue, Beyonce, Alex Perry, Alexander McQueen, Kimmy K and find out what you need to do.

Brands which include personal names – the so-called eponymous brands – are becoming more and more common. Naming a brand after an individual can emphasise the bond that exists between the creative and their product and registering a trade mark is a valuable tool that helps protects your valuable IP.

What is a trade mark?

Trade marks can be lots of things, provided it is used or intended to be used, to distinguish goods or services in the course of trade. In other words, it must be used to differentiate a particular product or service from other competitors.

Trademarks – General Requirements

A trade mark can be registered if it does distinguish, or is capable of distinguishing, goods or services from the goods or services of other persons.

To be registrable, a trade mark also must not be likely to cause confusion or deceive consumers, and cannot be too similar to another trade mark.

Eligibility of Personal Names

There are no rules that prohibit registration of personal names in Australia. Having said that it is not generally easy to do so, and you should consider the following:

  • Common personal names may be difficult to register. If your name is JOHN SMITH, give up now!It is difficult to establish that common names are capable of distinguishing one person’s goods/services from another as there may be many people with the same name and other people/businesses may have already established a reputation through use in the same name in respect of similar goods/services.

    This is not to say that it is impossible to register a common name – it is possible, however, for a common personal name to become capable of distinguishing a business over time and to become registrable, you will need to show that you’ve used the name in respect of the goods/services for many years and, through this use, the name has become distinctive.

  • Uncommon personal names are easier to register. This is because they are more easily distinguishable than common names. Ever wondered why celebrities change their name, and name their children distinctive names?

Registration of personal names may be possible even if the same personal name has already been registered. Each trade mark needs to be looked at on its own merits based on the way you have used your name in the past and intend to do so in the future.

As your personal name’s reputation develops, so too will its capability of distinguishing both yourself and your goods/services from other businesses. For example, business identity Dick Smith has trade marked his name because of the reputation he has developed over time in respect of a number of goods and services.

Key benefits of trade mark registration

There are many benefits to trade mark registration of your name. Some are:

  • Authenticity – Consumers see the trade mark as an indication of authenticity and association; and
  • Exclusivity – it can prevent other traders from using your name as a trade mark to sell their goods and/or services.

Key Takeaways

  • Registering your name as a trade mark can be a valuable commercial tool to improve your reputation and the profitability of your enterprise;
  • Personal names are only registrable if they meet the requirements of trade marks.
  • If you are considering registering your name as a trade mark, contact our trade mark professionals for advice and assistance to give you every chance of success.

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