Why It’s Time the Lanham Act Recognized Personal Brands

A creator with two million followers, a recognizable catchphrase, and a line of merchandise occupies an uncomfortable position in American trademark law. The Lanham Act was built to protect marks that identify the commercial source of goods and services, and it has always been ambivalent about names that identify people. A personal brand is both at once: it is a person, and it is a source. The statute treats that overlap as an exception to be managed rather than a category to be recognized, and the result is a body of doctrine that asks influencers, athletes, and self-named entrepreneurs to squeeze their identities through rules drafted for soap and cereal. Whether the Lanham Act should adapt to the rise of the personal brand is a question worth taking seriously, even if the answer is more cautious than enthusiastic.

How the statute treats a name today

Two provisions do most of the work. Section 2(c) bars registration of a mark that consists of or comprises a name identifying a particular living individual without that person’s written consent. Section 2(e)(4) refuses registration to a mark that is primarily merely a surname unless it has acquired distinctiveness under Section 2(f). Together they encode a policy older than the statute: a person should be able to use their own name in trade, and no one should be able to fence off a surname that others legitimately share.

That policy was sensible when a name on a storefront told customers who stood behind the goods. It fits awkwardly onto a creator whose name is the product. An applicant whose mark is primarily a surname must prove that consumers have come to associate the name with a single commercial source rather than with the surname itself.

For a working personal brand, that proof is the entire fight. Five years of substantially exclusive use can support a claim of acquired distinctiveness, but a creator three years into a career, or one whose audience is large but whose merchandising is thin, may not clear it. The doctrine asks for secondary meaning at precisely the moment the brand is most economically fragile.

Secondary meaning and the personal-name problem

Courts have long held that a personal name functions as a trademark only when it acquires secondary meaning. The Seventh Circuit complicated that tidy statement in Peaceable Planet, Inc. v. Ty, Inc., reasoning that the secondary-meaning requirement for personal names rests on identifiable policies—protecting a person’s interest in using their own name and avoiding consumer confusion among people with the same name—and should not be applied mechanically where those policies are not implicated.

That reasoning, applied to personal brands, cuts in a useful direction. When a creator adopts a stage name, a nickname, or a coined handle, the surname-monopoly concern often falls away, and the confusion concern points toward protection rather than against it. A handle invented for the marketplace is closer to an arbitrary mark than to a family name, and treating every name-shaped mark as presumptively weak overlooks how the modern attention economy actually assigns commercial meaning.

The doctrine has the tools to make that distinction. What it lacks is a settled willingness to treat the self-made name as a source identifier on its own terms rather than as a suspect category that must redeem itself through proof of secondary meaning.

The overlap with the right of publicity

A personal brand also sits inside a second body of law. The right of publicity protects against unauthorized commercial use of a person’s name, likeness, and identity, and it does so through state statutes and common law rather than a single federal rule. Roughly three dozen states recognize the right in some form, and their terms diverge sharply—California protects a deceased person’s likeness for seventy years, while other states extend far shorter terms or none at all.

The frictions between these regimes are not hypothetical. Jennifer Rothman’s 2022 study in the Harvard Law Review describes an “identity thicket” in which trademark and publicity rights increasingly point in different directions about who controls a person’s name, sometimes vesting effective control in a licensee or former employer rather than the individual whose identity is at stake.

For a creator, the thicket is concrete. A management company that registers the creator’s name as a trademark for apparel may hold leverage that outlasts the working relationship, because federal registration and a state publicity claim can be owned by different parties and can conflict. Recognizing personal brands within the Lanham Act, without attending to that overlap, risks deepening the tangle rather than clearing it.

What a registration actually buys

It is worth being precise about the stakes, because the value of a registration is often overstated. The Lanham Act already protects unregistered marks used in commerce through Section 43(a), so a creator with genuine market recognition has a cause of action against confusing imitation whether or not the name is on the Principal Register. Registration adds constructive notice, nationwide priority as of the filing date, and—after five years—the possibility of incontestable status that forecloses certain challenges.

Those advantages matter most against copycats and counterfeiters, the precise threats a successful personal brand attracts. The gap, then, is not that the personal brand is wholly unprotected. It is that the surest protections—registration and its presumptions—are gated behind a secondary-meaning showing calibrated for ordinary surnames, and that the federal mark, once obtained, may sit in tension with a separately owned publicity right.

What recognition would and would not require

Recognizing personal brands need not mean rewriting the statute. It could mean reading existing doctrine in light of how names now function in commerce: applying the Peaceable Planet logic to spare coined handles and stage names the full secondary-meaning burden, and treating a documented audience and merchandising record as competent evidence of acquired distinctiveness rather than as an afterthought.

It would not mean abandoning the surname rule. The policy that no one may monopolize a common family name remains sound, and a creator named Smith should not be able to clear the field of every other Smith in trade. Nor would recognition resolve the publicity overlap, which is a problem of preemption and ownership that the Lanham Act cannot fix alone. The privacy and control concerns that animate that debate echo broader questions about who governs personal data and identity, themes this publication has examined in the contexts of workplace privacy and location surveillance. Readers tracking how courts and agencies treat these questions can follow the case tracker.

Where the question is heading

The pressure on the doctrine is unlikely to ease. As more livelihoods are built on a name and a following, the number of applicants asking the Lanham Act to treat a self-made name as a real mark will grow, and the cases distinguishing a coined handle from a common surname will accumulate. The likeliest path forward is incremental—courts and the Trademark Office drawing finer lines about when a personal brand has earned source significance, and Congress eventually confronting the publicity patchwork that trademark law cannot reach. The personal brand will not force a new statute overnight. It will keep testing whether a 1946 law can see a name as both a person and a product at the same time.

Golden Gate Legal Review publishes commentary and analysis on developing areas of law; it does not provide legal advice.