Trademarking Your Name, Handle and Brand as a Creator

By Paul S. Rafelson, Founder, Rafelson Law PLLC

What can a creator register?

• The creator name or stage name, when it works as a brand for specific goods or services.
• A handle or channel name used consistently as the name of a business or product line.
• A logo or distinctive design.
• A product or merchandise brand that the creator launches.

Trademarks protect a name for particular goods and services, not the name in the abstract. A creator who wants to sell apparel, supplements, courses and a podcast usually needs to think about each category, because registrations are filed by class of goods and services. A trademark registration also does not give the creator control of a handle on a platform: handles are governed by the platform’s terms, though a registration can help in an impersonation or confusion dispute.

What are the issues with a personal name?

• Surnames. An application can be refused when the mark is primarily merely a surname (15 U.S.C. § 1052(e)(4)). The refusal can be overcome by showing acquired distinctiveness, sometimes called secondary meaning (15 U.S.C. § 1052(f)), through evidence of use, sales, advertising and public recognition.
• A name that is the same as another person’s. Many people share a name, and an earlier user or registrant of a similar mark for related goods can block an application or support a claim against the creator.
• Names of living individuals. A mark that identifies a particular living person generally cannot be registered by someone else without that person’s written consent (15 U.S.C. § 1052(c)). That is a tool for a creator who finds that someone else is trying to register their name.
• Phrases and titles. A common phrase or a slogan that only decorates a product can be refused as failing to function as a mark.

What does registration add?

A creator can have rights in a name through use alone and can sue under 15 U.S.C. § 1125(a), but registration adds benefits: a claim under 15 U.S.C. § 1114, a presumption of validity and ownership (15 U.S.C. § 1057(b)), and nationwide constructive notice. Amazon Brand Registry accepts a pending application, and a registration gives you stronger footing in some Brand Registry reports. See trademark vs. copyright in court and what a pending trademark gets you in Brand Registry. A creator can file before using the mark for the goods, on an intent-to-use basis (15 U.S.C. § 1051(b)), but registration issues only after use is shown.

What should happen before filing?

Three choices made before filing decide whether the application survives. The search has to look beyond identical names to related goods, because refusals come from there. The applicant has to be the entity owning the mark, because a filing by the wrong one is void and no amendment saves it. The proof of use has to show the name selling something, not labeling an account. We make those three calls with you before the fee is paid.

A creator who runs the business through a company usually should have the company own the mark and license it where needed. If your company applies to register your personal name, the USPTO needs your consent (15 U.S.C. § 1052(c)). Signing the application yourself generally supplies it, with a consent statement in the record. If someone else signs for the company, a separate written consent goes in. See holding companies and ownership structure.

How do brand deals affect the creator’s trademark?

A co-branded product or a long-term deal can give the other party rights to use the creator’s name, so the license should be written, limited and subject to the creator’s quality control. A trademark owner who lets others use the mark without controlling quality risks losing the mark altogether. Courts treat an uncontrolled license as abandonment (15 U.S.C. § 1127). See monetizing your reach through IP.

How do I get started?

Contact us. Tell us the name, what you sell or plan to sell and whether you have used it yet, and we will tell you whether we can help.

Paul Rafelson is admitted in Florida and New Jersey. Katie Dariano is admitted in New York. For a matter governed by another state’s law, or in another state’s courts, we bring in local counsel or seek admission as the rules require.

Frequently asked questions

Related pages

Sources and notes

• 15 U.S.C. §§ 1051(b), 1052(c), (e)(4), (f), 1057(b), 1064(3), 1114, 1125(a), 1127; United States Patent and Trademark Office guidance on surnames and secondary meaning (Trademark Manual of Examining Procedure).