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Determining a strong business name that will have a high likelihood of registration with the US trademark office is key. 

A trademark is primarily a surname if the public would initially recognize the name as a surname(or last name).   Surnames are classified in this manner as in general, the USTPO is of the opinion that everyone should be able to use their surname.

In general, the US trademark office does not allow business owners to use their last name as a trademark on the principal register.  There are exceptions for well-known surnames such as Denny’s and McDonald’s, as those names have become distinctive in the marketplace through advertising or long use. 

The trademark office determines whether a name is primarily a surname is decided on a case-by-case basis. The factors to be considered in determining whether a term is primarily merely a surname include the following: (1) the degree of a surname’s rareness; (2) whether anyone connected with the applicant has that surname; (3) whether the term has any recognized meaning other than that of a surname; (4) whether the term has the “structure and pronunciation” of a surname; and (5) whether the stylization of lettering is distinctive enough to create a separate commercial impression.

What if the surname is rare? 

The rarity of a surname is not always determinative in deciding whether the name can be registered.   Even a rare surname may be deemed to be primarily merely a surname if its primary significance to purchasers is that of a surname. Again, the rarity is just one factor the US Trademark office uses to determine whether a surname is primarily merely a surname.

Structure and Pronunciation of the Surname

The structure and pronunciation of the surname are also factors the US trademark office considers when determining whether to register a trademark that includes a surname.  Some surnames, by their nature, have only surname significance even though they are rare surnames, (e.g. Pirelli)  On the other hand, certain surnames are so rare that they do not even have the appearance of a surname. In such cases, even in the absence of non-surname significance, a reasonable application of the “primary significance to the purchasing public” test could result in a finding that the surname, when used as a mark, would be perceived as arbitrary or fanciful. 

Is your business primarily merely a surname?