Can You Trademark a Surname (Last Name)? It Depends...

Yes, but the USPTO holds surname-based marks to a higher standard than most other trademarks. If consumers already associate your last name with your business rather than with a person, you can register on the Principal Register. If that recognition hasn’t developed yet, the Supplemental Register offers a stepping-stone path that still provides meaningful protection while you build it.

Why the USPTO Is Skeptical of Surnames

The basic policy is straightforward: the USPTO wants to keep common surnames available for other people to use in business. A mark that is “primarily merely a surname” cannot go on the Principal Register without proof that consumers connect it to a specific source of goods or services rather than just a person’s name.

The examining attorney applies the Benthin factors (from In re Benthin Management GmbH) to make that call:

How common is the name? The USPTO checks census records, phone directories, and public databases. A name shared by tens of thousands of people (Smith, Johnson, Williams) faces stronger resistance than an uncommon one. But rarity alone does not settle the question. In In re Beds & Bars Limited (2017), the TTAB found “BELUSHI” primarily merely a surname even though only five people in the country held it, because public awareness of John and Jim Belushi made the surname significance overwhelming.
Does anyone connected with the business have the name? If the applicant or a company officer shares the surname, the USPTO treats that as evidence the public will perceive it as a surname.
Does the name have another recognized meaning? “King,” “Young,” and “Fox” function as common English words, which can shift the primary significance away from surname. “Morrison” or “Chen” have no competing meaning, so the surname impression is stronger.
Does it look and sound like a surname? Some letter combinations simply feel like last names to consumers, and the examining attorney considers that perception.

If the evidence is genuinely ambiguous, the TTAB resolves doubt in the applicant’s favor. But most common surnames are not ambiguous.

Secondary Meaning: What It Takes and How to Build It

The path to the Principal Register for a surname mark runs through Section 2(f) of the Lanham Act, which allows registration once the mark has “acquired distinctiveness” through use in commerce. That means proving consumers in your market hear your last name and think of your business, not just a person.

The USPTO accepts several categories of evidence under TMEP 1212.06:

Five years of substantially exclusive and continuous use. This is the simplest route. A verified statement that you have used the mark substantially exclusively and continuously for five years can support a claim of acquired distinctiveness, although the USPTO can still require more evidence when the surname showing is weak or third-party use is heavy. The five-year clock can start before your filing date and run until the date you make the claim.
Advertising expenditures. Documentation of how much you have spent promoting the brand, along with geographic reach and channels. No specific dollar threshold exists, but the amount needs to be meaningful relative to your market.
Revenue and sales figures. Sales volume tied to the mark, showing consumers have been purchasing under that brand identity.
Media coverage. Articles, reviews, or features that refer to the business by the surname mark.
Consumer declarations or survey evidence. Statements from customers or industry contacts confirming they associate the name with your business. For surveys, the TTAB has indicated that results below 10% recognition are generally insufficient, while results above 50% are generally sufficient.

A business that has operated under a surname for several years with consistent marketing and regional recognition may already have useful evidence for a 2(f) claim, but that does not make approval automatic. A brand-new venture usually does not have enough. The strength of evidence you need scales with how common the surname is: “Patel” for a hotel chain requires stronger proof than “Zavala” for a consulting firm, because the surname-service association is more expected in the first case.

The Supplemental Register Strategy

For most small businesses building a brand around a family name, the Supplemental Register is the realistic starting point, and it is a legitimate strategy rather than a consolation prize. Understanding the actual costs of federal trademark registration matters here, because the filing fee is the same either way: $350 per class for the government filing fee.

What the Supplemental Register gives you:

The right to use the federal registration symbol (®)
A listing in the USPTO database, which deters other applicants because your mark will appear in their clearance search
A basis for filing trademark applications in foreign countries
Standing to bring an infringement action in federal court

What it does not give you:

The legal presumption of nationwide ownership that comes with the Principal Register
Incontestable status after five years
The ability to record with U.S. Customs to block counterfeit imports

The upgrade path is straightforward. After building enough evidence of acquired distinctiveness (often through those five years of exclusive use), you file a new application for the Principal Register. You cannot convert an existing Supplemental registration directly, but the new application process is the same as any other filing. Many surname-based businesses follow exactly this sequence: Supplemental Register first, Principal Register once the evidence supports it.

When a Surname Mark Is Worth Pursuing

My firm’s Federal Trademark Registration service is $1,195 plus the $350 government filing fee per class, the same whether your mark is a surname or any other type. The real question is whether the mark is the right long-term investment for your business.

A surname mark makes sense when you are building a business around the family name for the long term, operating across state lines, and investing in marketing that ties the name to your specific services. Law firms, restaurants, construction companies, and professional practices are classic examples where the surname becomes the brand over time.

One thing to watch: adding a generic or descriptive word to a surname typically does not solve the problem. The TTAB has refused marks like MILLER LAW GROUP and ATWELL SUITES because merely descriptive additions do not change the primary surname significance. If you are considering “Morrison Consulting,” the examining attorney will view “Consulting” as generic for your services and focus the analysis on “Morrison” alone. Combining two surnames, or adding a fanciful or suggestive term, can shift the analysis in your favor.

If your last name is extremely common and you are in a field crowded with others sharing that name, a more distinctive business name may be a better investment than years of secondary meaning evidence gathering. That honest assessment is part of what I review with clients before filing, and understanding how first-name trademarks work under a different standard can help you decide which element of your personal name offers the strongest mark.

Next Steps

If you are using your last name as your business name and want to protect it, the first step is a clearance search to confirm no one else has registered the same or a confusingly similar mark. From there, I can assess whether you have a realistic path to the Principal Register now or whether the Supplemental Register is the right starting point. Contact my office for a direct answer based on your specific name and business.

The Trademark Process, Explained