813 Consent to Register by Living Individual Depicted in Mark
See TMEP §1206 concerning refusal of registration under §2(c) of the Trademark Act, 15 U.S.C. 1052(c), when a mark in an application comprises the name, portrait or signature of a living individual whose consent to register such name or likeness is not of record.
If a mark comprises a name or likeness that could reasonably be perceived as that of a living individual, the examining attorney must inquire whether the name or likeness is that of a specific living individual and must advise the applicant that, if so, the individual's written consent to register the name or likeness must be submitted. The purpose of the inquiry is to avoid the unauthorized registration of an individual's name or likeness. Consent is required for registration of a pseudonym, stage name or nickname if the name identifies a specific living individual. On the other hand, the examining attorney should not make an inquiry when it is clear that the matter identifies a fictitious character (e.g., a name or likeness that is obviously that of a cartoon character).
If a name or likeness that could reasonably be perceived as that of a living individual is not that of a specific living individual, a statement to that effect should be printed in the Official Gazette and on the registration certificate. The statement should read as follows:
"__________ does not identify a living individual."
If a mark comprises the name or likeness of a living individual and consent to register is of record, the following statement should be printed in the Official Gazette and on the registration certificate:
"__________ identifies a living individual whose consent is of record."
The individual does not have to express his or her consent in this exact terminology. However, once consent is in the record, the examining attorney should enter the exact statement noted above in the record. A negative statement (advising that a name or likeness that could reasonably be considered to identify a specific living individual does not do so) should also be entered.
The statement of consent to registration of the name or likeness of a living individual must be personally signed by the individual whose name or likeness appears in the mark.
If the applicant is an individual and the mark is comprised, in whole or in part, of his or her name or likeness, consent to register is implicit if the individual whose name or likeness appears in the mark signs the application, either personally or through an authorized signatory. No inquiry should be made and no statement should be entered. See TMEP §1206.03(b) regarding implied consent.
Often, the applicant is a corporation whose corporate name includes a name that appears to be that of an individual, and the mark includes that name as well. For example, where the applicant is John Smith, Inc. and the mark is JOHN SMITH, consent to register the name "John Smith" must be obtained from the individual. If, however, the application is signed by the person whose name appears in the mark, either personally or through an authorized signatory, consent to register is implied. The examining attorney should make no further inquiry in that case. The examining attorney must ensure that the consent statement noted above is entered into the TRAM database.
If an applicant submits an unsolicited statement that a particular name or portrait does not identify a living individual, the statement will be printed in the Official Gazette and on the registration certificate only if an inquiry on this issue would have been necessary, i.e., if the name or portrait might reasonably be perceived as that of a specific living individual.All statements in the TRAM database as to whether a mark comprises the name, portrait or signature of a living individual whose consent is of record will automatically be printed in the Official Gazette and on the certificate of registration. Accordingly, when an examining attorney determines that such a statement should not be printed, the examining attorney should ensure that the statement is deleted from the database, and enter a note to the file indicating that the statement has been deleted. The document containing the information deleted from TRAM will remain of record for informational purposes. See TMEP §817 regarding preparation of an application for publication or issuance.