Can You Trademark Your Last Name?

The Surname Problem in Trademark Law

If your last name is Smith, Johnson, Williams, or any other common surname, and you want to trademark it for your business, the USPTO will almost certainly refuse your initial application. The refusal basis is Section 2(e)(4) of the Lanham Act: the mark is "primarily merely a surname."

The legal rationale: surnames are shared by many people, and allowing one business to monopolize a common last name would unfairly prevent others with the same surname from using their own name in business. A "John Smith Plumbing" has as much right to use that name as any other John Smith in the plumbing business.

But the surname rule is not absolute. Surnames can — and do — become registered trademarks. Ford, McDonald's, Hilton, Gucci, Chanel, Ferrari, Johnson & Johnson. These are all surnames. The path to registration requires demonstrating that, for the relevant consuming public, the primary significance of the word is as a brand identifier rather than as a last name.

How the USPTO Evaluates Surname Marks

When an examiner receives an application for a surname, they apply a multi-factor test to determine whether the word is "primarily merely a surname" to the relevant public:

• Frequency of the surname in the population — The examiner searches surname databases. A common surname (Smith: 2.4 million in the U.S.) is more likely to be perceived as a surname than a rare one (Gucci: extremely rare in the U.S. at the time of its original filing). The rarer the surname, the weaker the basis for refusal.
• Whether anyone connected with the applicant bears the surname — If the business owner's last name is the mark, the examiner considers whether consumers would perceive it as identifying a person rather than a brand.
• Whether the term has any other recognized meaning — If the surname also functions as a common word or has another recognized meaning (Hunter, Banks, Fox), the surname significance is diminished.
• Whether the mark "looks and feels" like a surname — This is the examiner's overall gestalt assessment.

Overcoming a Surname Refusal: Secondary Meaning

To register a surname mark over a Section 2(e)(4) refusal, you must prove acquired distinctiveness — evidence that consumers have come to associate your surname with your specific brand rather than experiencing it primarily as a last name.

The evidence the USPTO accepts:

• Five years of substantially exclusive and continuous use — This creates a rebuttable presumption of secondary meaning. You declare under oath that you have used the mark exclusively for at least five years. This is the most common path and is sufficient for many applications.
• Consumer surveys — Survey evidence showing that a significant percentage of your target consumers associate the surname with your brand (rather than with the concept of a person's last name) is compelling but expensive to produce.
• Advertising expenditures — Documentation of significant investment in promoting the mark as a brand identifier over time.
• Sales figures and media coverage — Volume of sales under the mark and unsolicited press references that treat the mark as a brand name.

Rare Surnames: A Faster Path

If your surname is genuinely rare — appearing only a few hundred or thousand times in U.S. population data — the examiner may not find sufficient evidence to support a primarily-merely-a-surname refusal in the first place. The test requires that the primary significance to consumers be as a surname; if most consumers have never encountered the surname before, it does not carry that primary significance.

Before assuming your surname will be refused, check its frequency. If your last name appears fewer than 1,000 times in U.S. population data, a skilled trademark attorney may be able to argue successfully that it is not primarily merely a surname — bypassing the secondary meaning requirement entirely.

First Names and Full Names

The surname doctrine applies specifically to last names. First names alone are generally not subject to the same refusal (though they may face other issues — some first names are so common as to be weak marks). Full names (first + last) are evaluated differently: the combination may function as a distinctive identifier, particularly if the full name is unique enough that consumers would not encounter it as a common surname.

Celebrity personal names — Taylor Swift, Ralph Lauren, Martha Stewart — follow special rules under the persona/right of publicity doctrine and can be registered when they have achieved sufficient secondary meaning as brand identifiers.