Every once in a while on Facebook and other social media networks as well as in blog comments, you’ll see someone post that their name is “trade marked [sic] and copy written [sic]” and for that reason, no one can use their name or quote them without prior written consent.
Who knows what drives people to make these sorts of claims? Maybe they’ve written something they don’t want to be held accountable for having written. Maybe they’re concerned that if what they’ve written is read in another forum, a string of lies will begin to unravel.
So let’s get to the details of whether a person’s name can be trademarked or copyrighted.
What can be copyrighted?
Copyright law protects creative works and intellectual properties. A personal name is neither a creative work nor an intellectual property. In fact, titles, slogans, logos , mottoes and common words or phrases are also ineligible for copyright protection.
What can be trademarked?
Since it is not possible to copyright a personal name, the option to have it trademarked does exist. However, simply placing a ™ after a name is not a legal trademark.
When Microsoft trademarked the word “Windows” the trademark could only be extended to apply to computer software. But how do the rules apply when it’s a personal name?
The individual must be able to prove that his or her name is already distinctive in the eyes of the general public. In other words, when people hear the name, the goods or services offered by that person are synonymous with the name. What this means is that the person’s name must have a proven secondary meaning to the general public.
However, just proving that there is a secondary meaning to the general public is not enough. Someone applying for a trademark on his or her name will also have to prove that no one else is using the same name and prove that no one else using the same name has a secondary meaning to the name that is similar to his or her name and its secondary meaning.
Of course, the more unique the person’s name happens to be, the more likely the person is to have their trademark application granted.
Ralph Lauren is a real person’s name and, because it has a secondary meaning (think Polo Ralph Lauren Corp.), it is trademarked.
Can someone use a personal name without permission?
It depends on the context in which the name is used.
Using someone’s name or likeness for news reporting and other expressive purposes (including blogging) is not exploitative, as long as the person’s name is part of a story that is also a matter of legitimate public interest.
For example, in the case of McMann v Doe, the courts determined that posting a photograph of a real estate agent on a “gripe site” dedicated to criticizing the real estate agent did not constitute misappropriation of name of likeness.
When a person says or writes something, they have to be prepared to own it. Threatening people because they are quoting or re-quoting what’s been said or written isn’t going to support a claim of trademark or copyright infringement. If someone objects to being quoted or requoted, crying foul and falsely accusing the other party of libel or defamation of character is more likely to see the tables turned on the offended party crying foul.
You Can’t Say That!