In the United Kingdom, Victoria and David Beckham have registered the name of their five year old daughter, Harper, with the United Kingdom Intellectual Property Office. Across the pond in the United States, Jay-Z and Beyoncé have recently applied to register their daughter’s name, Blue Ivy, with the United States Patent & Trademark Office for a wide variety of goods and services after a failed first attempt. But can you really protect your kid’s name?
In the United States, the answer might surprise you – yes, but only if you use it as a trademark.
Why would someone want to protect their kid’s name as a trademark?
When an individual or business applies for a trademark registration, they do so because they want to protect their “brand” or something that uniquely identifies their products or services. This can be anything from a brand name, to a logo, to a slogan, to…a name. There is a long history of individuals protecting their names under trademark law and preventing others from using a similar name for similar products or services. For example, Ernest and Julio Gallo have successfully prevented others with the last name “Gallo” from using it in connection with wine, even their own brother. The Kardashian Family’s “Kardashian” brand is worth millions, if not billions. President Trump’s “Trump” brand is a large portion of his reported “billion dollar” self-worth.
Just because you were born with a certain first or last name does not mean you can use it in business however you want. The same holds true for children. If you name your child Beyoncé, then your child, by mere virtue of receiving that legal name, would not be able to start a singing career using that name.
But why go through the trouble and expense of protecting your child’s name? Well, if you’re a celebrity, like it or not, there is a certain obsession in United States pop-culture with celebrity children. Magazines and tabloids detail every aspect of the relationship, down to hair cuts, style and even fashion sense. To be sure, it’s an odd world, but there may be a market for a celebrity child’s brand of shoes, socks, toys, or any number of other items.
There is also the possibility that your child, celebrity or not, has a special talent or ability that he or she may be able to make money from. In the age of five-year old fashion bloggers and infant YouTube celebrities, it is possible that your child’s name is being used to make money and should be protected from copycats trying to trade off the recognition of the child’s name. A parent may consent to the registration on behalf of a minor child.
Sometimes, you just want to use your child’s name in connection with a new business venture. For example, American businessman Dave Thomas decided to open a fast-food restaurant and named it after his fourth child. Thus, “Wendy’s” was created.
The risk of copy-cats attempting to take advantage of a celebrity child’s name is real – a third-party individual attempted to register the name Blue Ivy Carter NYC with the United States Patent and Trademark Office without the consent of the Carters. This application was ultimately abandoned.
How can someone protect a child’s name for future use when there’s no immediate plans to use it in commerce?
In the United States, you can only own a trademark if you have used it in commerce. However, you can reserve rights in a trademark if you have an “intent to use” the trademark in commerce for up to three years. This allows parents like Beyoncé and Jay Z to file an application before they have sold any product or service in connection with their child’s name. Once the trademark application is approved by the United States Patent & Trademark Office, then the Carter family business will have up to three years to provide “proof of use.” Every six months, however, they will have to pay a fee to extend the life of the application.
An “intent to use” is not merely wishful thinking that one day you may use a trademark. “Intent to use” means that you can show that you have taken business steps to use the mark, such as establishing a business plan, reaching out to manufacturers, etc. If you file without a proper “intent to use” then the entire trademark application (and any resulting registration) will be VOID.
Are there steps that non-celebrities should take to protect their kids from an intellectual property standpoint?
If you are particularly enterprising or if your child has a unique skill or talent and may make money using that skill or talent, then trademark registration can make a lot of sense. Make sure, however, that your production timeline accounts for legal and government fees needed to file for necessary extensions.
1. File as soon as you can establish an “intent to use” the name in commerce
As soon as you have a business plan and have started business activities related to the use of the name on goods and services, file the intent-to-use application. Keep in mind, however, that this starts the clock.
2. Monitor the USPTO website and the marketplace
Once you apply with the USPTO, you should make sure no one else begins using a similar trademark for similar goods and services. While you do not have a trademark until use begins, you can put potential infringers on notice of your potential rights.
3. Make sure that you do not miss any deadlines
Missing deadlines is fatal to a trademark registration and can be particularly important when you are reserving rights in a name. If your application is abandoned for missing a deadline, you will lose your application date and will have to start from scratch.
Don’t Forget About Other Forms of Intellectual Property, Like Your Photos
We’ve established why (and how) to protect the name of your child under trademark law. However, intellectual property is not limited to just brands. Copyright protection protects your photos, your child’s drawings, and a number of other creative “works.” Whether you are putting your child’s face on a new line of infant bibs, or posting their picture to your Facebook profile to share with family and friends, these come with their own pitfalls, as well, in today’s digital world. Many social media services can use your images in certain ways without your permission (i.e. for advertising and more), so you should make sure you know what each policy is before posting. Also, if you see unauthorized use of your photos, you should be proactive to remove the infringing use of your photographs and more to prevent someone else from profiting off of something you created.
If you or your child decide to use his or her name on specific products or for specific services, then you may want to consider protecting and registering your child’s name as a trademark. There are many pitfalls when it comes to protecting a name with the USPTO, but with careful consideration and proper development, you and your child can benefit from trademark protection.