Trademarks consisting of a person's own last name are usually not protected under trademark law unless the mark has acquired secondary meaning through extensive use and/or advertising in commerce. However, some surnames do not require secondary meaning in order to receive protection. That occurs when the surname also describes some other thing, such as BIRD, KING, or FLOWERS.
Courts have taken two different approaches in analyzing whether or not a surname has a meaning different enough from a last name so as not to require secondary meaning. One view requires secondary meaning when the mark's primary meaning is as a surname, while the other view requires secondary meaning when the mark's only likely impact is as a surname. Thus, in some courts, a surname can still receive protection without secondary meaning, if the mark is not perceived primarily as a surname, even if the only true meaning of the word is in fact as a surname. However, even if a surname is rare in the public at large, but the relevant consuming public conceives of the name primarily as a surname, it cannot be protected without secondary meaning.
It is worth noting that a surname can always be registered and protected without proof of secondary meaning, if it is used together with arbitraryor fanciful components. However, such protection will be weak with respect to the surname component alone, except insofar as that component acquires secondary meaning.
