Patent Attorney and Founder
Can You Trademark Your Last Name?
You start a business. Simple idea. You want to use your last name as the brand.
Seems fair, right?
“Can I trademark it? Like Disney. Like Hershey.”
Short answer?
No. Not usually.
Here’s why.
The trademark office has a rule about surnames. It’s called a “surname refusal.” And the idea behind it is pretty straightforward. If your last name is common, you don’t get to lock it up for yourself.
Think about it.
If one “Smith” got exclusive rights to “Smith” for, say, consulting services, that would block every other Smith out there. That’s not fair. So the system draws a line.
Last names, on their own, usually don’t qualify.
And this catches a lot of founders off guard. You build something personal. You want your name on it. It feels authentic. It feels earned.
But trademark law isn’t about what feels fair on a personal level. It’s about what’s fair across the marketplace.
But, there’s a twist.
You can get around this rule. It just takes time and proof.
If your name becomes known in the market, if people start to connect that name with your business, then it can gain what’s called “secondary meaning.”
In plain terms: people hear the name and think of you, not just the name itself.
That’s what happened with brands like Disney or Ford. Those weren’t just names anymore. They became identifiers tied to a specific source.
So how do you get there?
Time helps. Usually five years or more in business.
Consistency helps. Same name, same use. No constant rebranding.
Exposure helps. Marketing, customers, word of mouth, press.
You’re building a pattern in the minds of customers.
At some point, if you’ve built enough recognition, you can make the case that your name is more than a name, it’s a brand.
You may need evidence.
- Sales numbers
- Ad spend
- Customer testimonials
- Media mentions
All of that helps show that your name has crossed the line into something distinctive.
But starting out? Expect a “no.”
And that’s not a dead end. It just means you’re early.
Patent Enforcement Across Borders
Now let’s switch gears.
Someone asked about challenges for companies, specifically Asian companies, trying to enforce patents in other countries.
It’s an interesting question. But also a bit broad.
“Asia” covers a lot of ground. Different countries. Different laws. Different systems.
So let’s narrow it down.
Say you’re a company based in China. You have a product. You’re selling it in the U.S. Now someone copies your idea. What do you do?
Well, first thing to understand: patent law is local.
There’s no global patent that covers everything. Each country has its own rules. Its own courts. Its own process.
So if you want to enforce your patent in the U.S., you need a U.S. patent. And you need a U.S. attorney.
That’s non-negotiable.
And it surprises people. They assume their home country protection carries over. It doesn’t.
Same goes the other way.
If you’re a U.S. company trying to enforce rights in China, you’re stepping into a different system. Different expectations. Different enforcement tools.
Some countries move fast. Others don’t.
Some offer strong damages. Others are limited.
Some courts are strict. Others are more flexible.
And then there’s the practical side.
- How do injunctions work there?
- Will customs stop infringing goods at the border?
- Can you actually collect damages once awarded?
- How are licensing deals handled in that country?
These are not small details. They shape your entire strategy.
And language, culture, and business norms play a role too.
Something that feels standard in the U.S. might feel aggressive elsewhere. Or too passive.
So the real challenge isn’t just “being foreign.” It’s learning a new system from the ground up, and finding the right people to guide you through it.
That usually means local counsel. People who know the courts. The judges. The process.
Without that, you’re guessing. And guessing in litigation is expensive.
USPTO Crackdown on Foreign Trademark Filings
Now, here’s something that caught attention recently.
The U.S. Patent and Trademark Office issued an order targeting over 40,000 trademark registrations tied to Chinese applicants.
That’s a big number. Huge.
So what happened?
For years, there were incentives in China for companies to file trademarks in the U.S. In some cases, companies were paid or encouraged to file, even if they didn’t actively use the mark.
That led to a flood of applications.
And somewhere along the way, things got messy.
There were filings that appeared to use U.S. attorneys’ names, but those attorneys weren’t really involved. They weren’t reviewing the applications. They weren’t acting as true counsel.
They were, in some cases, just names on paper.
That’s a problem.
Because U.S. rules are clear: if you’re a foreign entity filing for a trademark here, you must have a U.S.-licensed attorney involved.
Not as a formality. As an actual representative.
Someone accountable.
So now the USPTO is cracking down.
We’ve already seen attorneys face discipline. Some have been suspended. Others are under review.
And this has ripple effects.
It slows down questionable filings.
It clears space in the system.
It protects legitimate applicants.
And honestly, that’s not a bad thing.
Because when the system gets flooded with low-quality or improper filings, everyone pays the price. Delays go up. Costs go up. Frustration builds.
So while 40,000 sounds dramatic, and it is, it may help restore some balance.
When a Big Company Files Your Idea
Now let’s talk about a tougher situation.
You invent something. During your PhD, maybe.
You present it at a conference. It gets published. It’s out there.
Then, a year later, a big company files a patent on that same idea.
What now?
First reaction? Frustration. Maybe anger.
It feels like someone took your work and ran with it.
But there are paths forward.
If you can prove you came up with the idea first, and that they got it from you, you may have a case.
Documentation is key.
- Conference papers
- Presentation slides
- Emails
- Drafts
- Lab notes
- Witnesses
Anything that shows your work existed before their filing, and that it was accessible.
From there, you have a few options.
One route is federal court. That’s the traditional path. You work with a patent litigator and build a case around what’s called “derivation.”
In simple terms: they didn’t invent it, you did.
There’s also a more targeted process through the Patent Trial and Appeal Board. It’s called a derivation proceeding.
It’s designed for exactly this kind of situation.
But there’s a catch.
You have a one-year window from the time their patent application is published.
Miss that window, and this option may disappear.
That timeline matters more than most people realize.
There’s another wrinkle too.
You usually need to file your own patent application and show how theirs conflicts with yours, and how the idea traces back to you.
It’s not simple. But it’s there.
And sometimes, just raising the issue, especially if there’s strong evidence, can lead to a settlement.
Because here’s the thing: when someone files a patent, they sign an oath. They swear they are the inventor.
If that’s not true, and they knew it, that’s a serious issue.
That’s not just a mistake. That can be fraud.
And that gives you leverage.
Not every case goes to trial. Many resolve earlier, once the risks are clear.
Trademarking Slogans and Jingles
Now let’s shift back to trademarks.
A common question comes up: can you trademark a political slogan? Or a jingle?
Short answer, yes. But there are limits.
If it’s your original slogan, and you’re using it in commerce, you can apply.
Same idea with a jingle.
But it has to function as a trademark. That means it identifies the source of something, goods or services.
That’s the key test.
And everything falls into categories. The USPTO has 45 of them.
So you’d need to figure out where your slogan fits.
- Is it tied to education?
- Campaign services?
- Merchandise?
That classification matters more than people think.
Because your rights are tied to how the mark is used.
And there’s another issue.
If the slogan is too common, or just informational, it might not qualify.
Something like “Vote Now” probably won’t work. It’s too generic.
But something more unique, tied closely to your brand? That has a better shot.
Same goes for jingles.
If it’s short, distinct, and consistently used, you may have something protectable.
Non-Traditional Trademarks (Sound, Smell, and More)
Then there’s the more unusual side of trademarks.
Sound marks.
These are rare. But they exist.
Think of a short sequence of tones. A recognizable chime. Something you hear and instantly associate with a brand.
It’s possible to register that.
But the bar is high.
Very high.
You have to prove that the sound, by itself, tells people who you are.
That usually means:
- Consumer surveys
- Expert reports
- Market data
- Long-term use
You’re not just filing a form. You’re building a case.
Same goes for other non-traditional marks.
Smells. Product shapes. Even textures.
They can be protected, but only if they’ve become distinctive in a strong, clear way.
And that doesn’t happen overnight.
It takes time. Money. And a lot of proof.
You’re probably not doing this on day one.
This is something established brands pursue. After they’ve grown. After they’ve built recognition.
It’s more of a long game.
And for most early-stage founders, it’s not the first priority.
How Patent Litigation Fees Work
Now, one last point worth touching on, litigation.
People often ask: do patent lawyers work on contingency?
Sometimes. But not always.
It depends on the strength of the case.
Many cases start with upfront work. There’s analysis that needs to be done before anyone takes the risk.
One key step is claim charting.
That’s where you take your patent claims and line them up against the accused product.
Element by element.
Does it match? Or not?
It’s detailed work. But it tells you a lot.
If the answer looks strong, then contingency options might open up.
You might bring in funding. Or find a firm willing to share the risk.
But if the case is weak, it’s going to be hard to move forward, no matter the fee structure.
Litigation is expensive. No way around it.
So everyone involved wants to see a clear path before jumping in.
Final Thoughts
At the end of the day, a lot of this comes down to expectations.
Not everything is protectable right away.
Not every idea turns into a clean legal win.
Not every system works the same way across borders.
But there are paths.
Some are straightforward. Others take time.
Some require patience. Others require fast action.
The key is knowing where you stand, and what tools are available to you.
That’s where good advice matters.
Because the rules are there.
You just need to know how to work within them.