TMEP 819.01(o): Consent to Registration of Name or Portrait

This is the October 2015 Edition of the TMEP

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819.01(o)    Consent to Registration of Name or Portrait

If the mark includes a name or portrait that could reasonably be perceived as the name or portrait of a particular living individual (see TMEP §§813–813.01(c), 1206–1206.05), the 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).

The additional fee is required if the mark includes an individual’s name or portrait, and these statements are omitted. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c).

Exception: If the applicant fails to include a consent to use a name or portrait that appears in the mark, but the individual’s consent can be presumed because the individual named or shown in the mark personally signed the application (see TMEP §1206.04(b)), the applicant will not lose TEAS Plus status.

If consent is of record in a valid registration owned by applicant, the applicant may satisfy the requirement for a consent statement by claiming ownership of the existing registration. See TMEP §1206.04(c).

If the initial application includes a statement regarding the name or likeness of an individual, no additional fee is required if the statement is later amended, as long as the amendment is filed through TEAS or entered by examiner’s amendment.

The additional fee is required only where it is clear that the name or likeness could reasonably be perceived as that of a living individual. The fee must be charged if the mark comprises a portrait, or of a first and last name. If the mark comprises a title, such as Mrs. Smith, a surname, or a first name only, the examining attorney must consider whether the name is that of a particular living individual (see TMEP §1206.03), but must not require the additional fee.

Example: The mark is STEVEN JONES, and the application is silent as to whether this name identifies a living individual. The examining attorney must: (1) inquire whether the name or likeness is that of a specific living individual and advise the applicant that, if so, the individual’s written consent to register the name must be submitted; and (2) require the additional TEAS Plus processing fee.

Example: The mark is DOCTOR JONES, and the application is silent as to whether this name identifies a living individual. If there is evidence that the name identifies an individual who is generally known or well known in the field relating to the relevant goods or services (see TMEP §§1206.02, 1206.03), the examining attorney must issue an inquiry and require the individual’s written consent to register the name, but must not require the additional TEAS Plus processing fee. If there is no evidence that the individual is generally known or well known in the relevant field, the examining attorney should not inquire or require the additional fee.

Example: The mark is STEVEN, and the application is silent as to whether this name identifies a living individual. If there is no evidence that the individual is generally known or well known in the relevant field, the examining attorney should not inquire or require the additional fee. If there is evidence that the first name identifies an individual who is generally known or well known in the relevant field, the examining attorney must issue an inquiry and require the individual’s written consent to register the name, but must not require the additional TEAS Plus processing fee.

See TMEP §1206.03 for further information as to when the examining attorney must issue an inquiry as to whether a name or likeness is that of a particular living individual, and TMEP §1206.02 regarding the connection between the individual and the relevant goods or services.