TMEP 813: Consent to Register by Particular Living Individual Whose Name or Likeness Appears in the Mark
October 2017 Edition of the TMEP
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813 Consent to Register by Particular Living Individual Whose Name or Likeness Appears in the Mark
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, respectively. 15 U.S.C. §1052(c). The requirement for consent also applies to the registration of a pseudonym, stage name, or nickname, if there is evidence that the name identifies a specific living individual who is publicly connected with the goods or services, is generally known, or is well known in the field relating to the relevant goods or services. See TMEP §§1206–1206.05 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.
See TMEP §1206.03 for information about when the examining attorney must inquire as to whether a name or likeness identifies a particular living individual.
Consent may be presumed where the individual whose name or likeness appears in the mark personally signs the application. See TMEP §1206.04(b) for further information.
If a consent to register is already part of the record in the file of a valid registration for a mark comprised in whole or in part of the same name, portrait, or signature for the same goods or services, the applicant may satisfy the requirement for a consent statement by claiming ownership of the registration and advising the examining attorney that the consent is of record therein. See TMEP §1206.04(c) for further information.
If a mark comprises the name or likeness of a living individual and consent to register is of record or is presumed from signature of the application, a statement that the mark identifies a living individual whose consent is of record must be printed in the Official Gazette and on the registration certificate. See TMEP §§813.01(a), 1206.04(b). 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 is printed in the Official Gazette and on the registration certificate. See TMEP §813.01(b).
In a TEAS Plus application, if the mark includes an individual’s name or portrait, the initial application must include either: (1) a statement that identifies the living individual whose name or likeness the mark comprises, and written consent of the individual; or (2) a statement that the name or portrait does not identify a living individual. 37 C.F.R. §2.22(a)(18). If this statement does not appear in the initial application, the applicant must pay a processing fee per class to have the application examined as a regular TEAS application. See TMEP §819.01(o) for further information.
See TMEP §§813.01(b) and 1206.05 regarding statements that a name or likeness that could reasonably be perceived as that of a living individual is not that of a specific living individual.