T.M.E.P. § 1206.02
Particular Living Individual or Deceased U.S. President

Executive summary:

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1206.02 Particular Living Individual or Deceased U.S. President

Section 2(c) applies to marks that comprise matter that identify living individuals; it does not apply to marks that comprise matter that identifies deceased persons, except for a deceased president of the United States during the life of the president's widow. See McGraw-Edison Co. v. Thomas Edison Life Insurance Co., 160 USPQ 685 (TTAB 1969), vacated on other grounds, 162 USPQ 372 (N.D. Ill. 1969) (opposition to the registration of THOMAS EDISON dismissed, the Board finding §2(c) inapplicable, as the particular individual whom the name identifies is deceased); In re Masucci, 179 USPQ 829 (TTAB 1973) (affirming refusal to register mark consisting of the name EISENHOWER, a portrait of President Dwight D. Eisenhower and the words PRESIDENT EISENHOWER REGISTERED PLATINUM MEDALLION #13, for greeting cards, on the ground that the mark comprises the name, signature or portrait of a deceased United States president without the written consent of his widow, under §2(c)).

The fact that a name appearing in a mark may actually be the name of more than one person does not negate the requirement for a written consent to registration, if the mark identifies, to the relevant public, a particular living individual or deceased United States president whose spouse is living. In re Steak and Ale Restaurants of America, Inc., 185 USPQ 447 (TTAB 1975) (affirming refusal to register PRINCE CHARLES, for meat, in the absence of consent to register by Prince Charles, a member of the English royal family. "Even accepting the existence of more than one living 'Prince Charles,' it does not follow that each is not a particular living individual.")

If it appears that a name, portrait or signature in a mark may identify a particular living individual but in fact the applicant devised the matter as fanciful, or believes it to be fanciful, a statement to that effect should be placed in the record. If appropriate, the statement that a name, portrait or signature does not identify a particular living individual will be printed in the Official Gazette and on the registration certificate. See TMEP §813. Additional relevant circumstances should also be explained. For example, if the matter identifies a certain character in literature, or a deceased historical person, then a statement of these facts in the record may be helpful; however, this information should not be printed in the Official Gazette or on a registration certificate.

Although a mark may have been devised to be fanciful or arbitrary and not to identify a particular living individual, it nevertheless may name or otherwise identify one or more living individuals. Whether a consent to registration is required depends on whether the public would recognize and understand the mark as identifying the person. Therefore, if the person is not generally known, or well known in the field relating to the relevant goods or services, it may be that the mark would not constitute the identification of a particular person under §2(c), and consent would not be required. The Trademark Trial andAppeal Board noted as follows in Martin v. Carter Hawley Hale Stores, Inc., 206 USPQ 931, 933 (TTAB 1979):

[Section] 2(c) was not designed to protect every person from having a name which is similar or identical to his or her name registered as a trademark. Such a scope of protection would practically preclude the registration of a trademark consisting of a name since in most cases there would be someone somewhere who is known by the name and who might be expected to protest its registration. Rather, the Statute was intended to protect one who, for valid reasons, could expect to suffer damage from another's trademark use of his name. That is, it is more than likely that any trademark which is comprised of a given name and surname will, in fact, be the name of a real person. But that coincidence, in and of itself, does not give rise to damage to that individual in the absence of other factors from which it may be determined that the particular individual bearing the name in question will be associated with the mark as used on the goods, either because that person is so well known that the public would reasonably assume the connection or because the individual is publicly connected with the business in which the mark is used.

See also Fanta v. Coca-Cola Co., 140 USPQ 674 (TTAB 1964) (dismissing a petition to cancel registrations of FANTA, for soft drinks andsyrup concentrate, the Board noting no use by the petitioner, Robert D. Fanta, of his name in connection with the sale of soft drinks, nor any indication that petitioner had attained recognition in that field); DeCecco v. Wright, 120 USPQ 20 (TTAB 1958) ("The question whether the name 'DECECCO' as used by applicant in connection with his goods serves to identify opposer is a matter for proof."); Brand v. Fairchester Packing Co., 84 USPQ 97 (Comm'r Pats. 1950) (affirming dismissal of a petition to cancel the registration of ARNOLD BRAND, for fresh tomatoes, the Commissioner finding nothing in the record to indicate that the mark identified the petitioner, Arnold Brand, an attorney specializing in patent and trademark matters, with the tomato business, or that use of the mark would lead the public to make such a connection).