Start here
The Zest

Your name is the brand: trademarking a trainer's or fitness influencer's personal name

Written by

Yes, you can register your own name, but two rules shape how. A last name on its own is often refused as "primarily merely a surname." And any name that identifies a living person needs that person's written consent, which the USPTO presumes when the person is you and you sign. Then there's a business decision: whether you or your LLC owns the registration.

Does my full name get past the surname rule?

The statute bars registration of a mark that "is primarily merely a surname." The Trademark Manual of Examining Procedure (TMEP), the rulebook examiners use, says the test is "the primary significance of the mark as a whole to the purchasing public." Examiners look at whether the surname is rare, whether it's the surname of anyone connected with the applicant, whether it has another recognized meaning, and whether it has the "structure and pronunciation" of a surname.

The key words are "as a whole." Something added to the surname can change what people hear. The TMEP says initials in front of a surname "will typically convey the commercial impression of a personal name," and gives the example that "J.J. YELEY would be perceived as referencing a particular person." Once a mark reads as a specific person's name, it's no longer a bare surname. A different rule takes over, and that's the consent rule below.

The same goes for a surname paired with other wording. The TMEP says a surname combined with wording that is itself inherently distinctive isn't primarily merely a surname.

What about "Coach" plus my last name?

Here is the part that surprises people. Adding a title doesn't help. The TMEP says a title next to a surname "does not diminish the surname significance of a term," and "it may enhance the surname significance." Trainers love "Coach Rivera" or "Dr. Patel Fitness." The title tells people it's a last name, which is what the refusal is about.

If the only thing you have is your last name, there are two paths. The statute lets a surname register on the main register once it has become distinctive, and it allows the USPTO to accept "substantially exclusive and continuous use" for five years as evidence of that. Before then, a surname mark can go on the Supplemental Register, which takes marks "capable of distinguishing" the applicant's goods or services. I covered those options in the article on surname refusals.

A separate part of the statute bars a mark that consists of a name "identifying a particular living individual except by his written consent." It applies when the name is your own, too, but it's easy to satisfy.

The USPTO's guidance says: "If your trademark includes your own name, image, or likeness, we presume consent." The TMEP puts it this way: consent "may be presumed where the individual whose name or likeness appears in the mark personally signs the application." The registration then carries a published statement that the mark identifies a living individual whose consent is of record.

When the name belongs to someone else, like a co-founder or a partner coach, the consent has to be a written document that includes a statement consenting to registration, the person's signature and the date. It must be "personally signed by the identified person."

Does this apply to my handle or nickname?

It can. The TMEP says the consent requirement also applies to "a pseudonym, stage name, or nickname, if there is evidence that the name identifies a specific living individual." For influencers, a handle that followers know as you may be treated like your name. That cuts both ways. You may need to give consent for your own handle, and no one else can register it without your consent once it identifies you.

You or your LLC?

The applicant has to be the owner of the mark on the day you file. The federal rule is blunt: "An application filed in the name of an entity that did not own the mark as of the filing date of the application is void." And while you can correct a typo in the applicant's name, "the application cannot be amended to set forth a different entity as the applicant."

So decide who owns it before you file. If you file personally, you're the applicant and you sign, and the consent is presumed. If your LLC files, the LLC is the owner, and the consent presumption in the TMEP is written around the named person personally signing the application. Plan on a written consent signed by you as an individual so the record is clean.

The bigger question is what you want to happen to your name later, if the company is ever sold or you part ways with a business partner. Your name will be an asset of whoever owns the registration. I walked through the tradeoffs in the article on whether you or your LLC should own the trademark.

What this means for your brand

Start by looking at the exact name you use. Full name, first name only, last name only, last name plus a title, or a handle. Each one is treated differently. A full name or a name with distinctive wording added usually avoids the surname problem and runs into the consent rule, which you satisfy by signing. A bare last name or "Coach" plus a last name is where refusals happen. Then pick the owner on purpose, not by default. If you're still deciding which version of your name to build around, the article on how to trademark a name covers the basics.

If you want to talk through whether your name will run into the surname rule before you file, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

Start here