TMEP 1206.04(a): Consent Statement Must Be Written Consent to Registration

October 2017 Edition of the TMEP

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1206.04(a)    Consent Statement Must Be Written Consent to Registration

Must Be Personally Signed. When a name, portrait, or signature in a mark identifies a particular living individual, or a deceased president of the United States during the life of his widow, the mark can be registered only with the written consent of the individual, or of the president’s widow. 15 U.S.C. §1052(c). The consent must be a written consent to the registration of the identifying matter as a mark, and, in the case of a living individual, must be personally signed by the individual whose name, signature, or likeness appears in the mark. Where the name, signature, or likeness is that of a deceased president, the consent should be signed by the president’s surviving spouse.

Consent to Use is Not Consent to Registration. Consent to use of a mark does not constitute consent to register. See Krause v. Krause Pub'ns, Inc., 76 USPQ2d 1904, 1913 (TTAB 2005); Reed v. Bakers Eng'g & Equip. Co., 100 USPQ 196, 199 (PTO 1954); Garden v. Parfumerie Rigaud, Inc., 34 USPQ 30, 31 (Comm’r Pats. 1937) ("Permission to use one’s name and portrait in connection with a specified item of merchandise falls far short of consent to register one’s name and portrait as a trade mark for such merchandise generally.") Consent to register a mark that makes no reference to consent to use is acceptable; the USPTO has no authority to regulate use of a mark.

Minors. If the record indicates that the person whose name or likeness appears in the mark is a minor, the question of who should sign the consent depends on state law. If the minor can validly enter into binding legal obligations, and can sue or be sued, in the state in which he or she is domiciled, then the minor may sign the consent. Otherwise, the consent should be signed by a parent or legal guardian, clearly setting forth his or her status as a parent or legal guardian. If the record indicates that person whose name or likeness appears in the mark is a minor, the examining attorney must inquire as to whether the person can validly enter into binding legal obligations under the law of the state in which he or she is domiciled. If the minor cannot enter into binding legal obligations, the examining attorney must require consent by the parent or guardian. See TMEP §803.01 regarding the filing of an application in the name of a minor.