Tips for Registering Your Personal Name as a Trade Mark

George Raptis

• 19 January 2023
• 31 January 2023
• 6 min read

If you operate a successful YouTube channel or make a living as a social media influencer, you might consider registering your name as a trade mark. Trade mark registration can give you the exclusive right to use your name, meaning you can prevent others from copying the same name to market their goods and services. However, before registering your name as a trade mark, you should consider the following tips.

1. Ensure Your Personal Name Can Distinguish Your Business

A trade mark is a unique sign you use that helps others identify your business and brand. If you successfully register your trade mark with IP Australia, you gain the exclusive right to use your trade mark concerning the goods and services your business offers. This means that if a similar business decides to trade using an identical or similar trade mark, you have the right to prevent them from doing so.

However, trade mark registration is not guaranteed upon filing your application. Instead, IP Australia will assess your application to ensure it meets certain legal criteria. If you wish to register your personal name as a trade mark, your name must be capable of:

• sufficiently identifying and distinguishing the goods and services you provide; and
• helping customers identify your branding.

A personal name might not be capable of distinguishing your goods and services from others if it is a common name. For example, surnames like ‘Smith’ and ‘Jones’ or first names like ‘Harry’ or ‘David’ may be difficult to register.

You may also encounter difficulties if you want to file a trade mark that combines a common name with the goods and services you provide. For example, it may be difficult to register a trade mark for the name ‘John Smith Accountants’ since the name is common and the title ‘Accountants’ only describes the company’s services.

As a general rule of thumb, if your name appears less than 750 times on the Australian electoral roll, it should not pose any issues regarding distinctiveness.

2. Decide Who Owns the Trade Mark

If you operate your business as a sole trader, you will likely register the trade mark in your name. Consequently, you become the registered owner of the trade mark as an individual.

If you register a trade mark through your company, the company will likely own the trade mark. One benefit of owning the trade mark is that people will associate the reputation and goodwill of your goods and services with your company. Additionally, it can be easier to licence a trade mark to other commercial entities if your company owns the trade mark. 

When deciding who owns the registered trade mark, it is crucial to consider your company’s position in the short and long term. If you choose to restructure your company, it can be costly to:  

• transfer ownership of the trade mark from your name to the new entity; or 
• re-file the trade mark in the name of the new entity. 

For this reason, it would be wise to seek legal advice from an experienced trade mark lawyer when filing your trade mark application.

3. What Happens if You Leave the Business?

If you decide to leave or sell your business in the future, you could encounter potential trade mark infringement issues concerning your own name. For example, this could arise if you establish another brand with the same name. 

For example, say you operated an accounting firm for five years and have a registered trade mark that protects your personal name in the relevant services. If you decide to leave the firm but establish a new firm under the same name, you may mislead or deceive clients who think you own both firms.

You should think wisely before registering your personal name as a trade mark. Likewise, consider whether it may limit your ability to begin new business ventures in the future.

4. What if Your Name is Already Registered?

If you find that someone else has already registered your personal name as a trade mark, you should approach the situation with care. Using the trade mark that contains your personal name will not constitute trade mark infringement if you used the name in good faith. Good faith means that there was an honest belief that you would not confuse consumers by using your name, and there was no intention to take advantage of the reputation gained by the business that owned the registered trademark. 

For example, say you advertised your business’ cleaning services with your family name ‘Macintosh,’ despite Apple Inc. owning the exclusive rights to use the trade mark ‘Macintosh’. In this instance, you may have been acting in good faith since you did not intend to benefit from Apple Inc.’s reputation. Alternatively, if you use the name for marketing your computer and software company, you are likely acting in bad faith.

Whether you acted in good faith does not depend on what you intended when you began to use your family name. Instead, the Court determines what a reasonable person in your position would have honestly believed. 

Key Takeaways

You can register your personal name as a trade mark if it can distinguish your business’ goods and services from competitors. Before registering your personal name as a trade mark, you should seek legal advice to help you decide:

• who owns the trade mark;
• whether registering the trade mark will limit your ability to operate other businesses in the future; and
• whether you can use your name if someone has already registered it as a trade mark.

If you need help registering your name as a trade mark, our experienced trade mark lawyers can assist. Call us on 1300 657 423 or complete the form on this page.

Frequently Asked Questions