Can I copyright my birthname? I know I can't under federal law, but
can I under common law? Where is site or proof that states this? If it
cannont be copyrighted under common law, then can it be done under
Trademark in common law?

Hello Leosd!

No, you cannot copyright your name - copyright law applies only to
creative works.  Copyright and Trademark are two entirely different
things:

"Do Trademarks, Copyrights and Patents protect the same things?

No. Trademarks, copyrights and patents all differ. A copyright
protects an original artistic or literary work; a patent protects an
invention. For copyright information, go to
http://lcweb.loc.gov/copyright/. For patent information, go to
http://www.uspto.gov/main/patents.htm."

TRADEMARK, COPYRIGHT OR PATENT?
http://www.uspto.gov/web/offices/tac/doc/basic/trade_defin.htm

"Copyright is a form of protection provided by the laws of the United
States (title 17, U.S. Code) to the authors of “original works of
authorship,” including literary, dramatic, musical, artistic, and
certain other intellectual works. This protection is available to both
published and unpublished works."

What Is Copyright?
http://www.copyright.gov/circs/circ1.html#wci

You *can* trademark your name, but only under specific circumstances -
you must have a legitimate basis for filing for trademark
registration. Typically, this means that you either already use your
name to represent specific goods or services, or you intend to do so
in the near future:

"BASIS FOR FILING

The application should include your "basis" for filing. Most
applicants base their application on their current use of the mark in
commerce, or their intent to use their mark in commerce in the future.

What is "use in commerce"?

For the purpose of obtaining federal registration, "commerce" means
all commerce that the U.S. Congress may lawfully regulate; for
example, interstate commerce or commerce between the U.S. and another
country. "Use in commerce" must be a bona fide use of the mark in the
ordinary course of trade, and not use simply made to reserve rights in
the mark."

BASIS FOR FILING
http://www.uspto.gov/web/offices/tac/doc/basic/appcontent.htm#basis

If your intent is to use your birth name as the name of your business,
and you want to prevent others from using this name for their
business, you can register your name as a trademark.

Registering your birthname as a trademark simply to prevent others
from ever having that name is not permissible - applicants who cannot
show good faith intent to use in commerce will be rejected:

"After the USPTO determines that you have met the minimum filing
requirements, the application is forwarded to an examining attorney.
This may take a number of months. The examining attorney reviews the
application to determine whether it complies with all applicable rules
and statutes and includes all required fees. Federal registration of
trademarks is governed by the Trademark Act of 1946, 15 U.S.C. §1051
et seq., and the Trademark Rules of Practice, 37 C.F.R. Part 2.

[...]

Are there other reasons the examining attorney might refuse my mark?

Yes. In addition to likelihood of confusion (discussed above), an
examining attorney will refuse registration if the mark is:

* primarily merely descriptive or deceptively misdescriptive of the
goods/services;
* primarily geographically descriptive or primarily geographically
deceptively; misdescriptive of the goods/services;
* primarily merely a surname; or
* ornamental.

This is not a complete list of all possible grounds of refusal. See
Chapter 1200 of the Trademark Manual of Examining Procedure (TMEP),
available at http://www.uspto.gov/web/offices/tac/tmep/, for a
complete discussion of the grounds for refusal of registration of a
mark."

LEGAL AND PROCEDURAL REVIEW OF APPLICATION
http://www.uspto.gov/web/offices/tac/doc/basic/afterapp.htm#legal

A good example of someone whose name is recognized as a trademark is
Charles Schwab, the investment broker.  If you follow the link below,
you will be taken to the TESS search results for a "full mark" search
on "Charles Schwab".  The first link in the results is for Charles
Schwab, and lists the serial number and several prior registrations:

TESS Query:  Full Mark - Charles Schwab
http://makeashorterlink.com/?B4EE12742

If you plan to trademark your birth name for business purposes,
Arvic.com discusses proper use of trademark for both Canadian and US
businesses.  They outline several steps:

--Give public notice of your use or intent to use the trademark

--For trademarks registered with the US Patent and Trademark Office,
place the ® symbol in the upper right-hand corner of the mark or
display the words "Registered in the U.S. Patent and Trademark Office"
at the bottom of whatever medium the trademark appears on.

--For unregistered trademarks, use the TM sign in the upper right hand
corner of the trademark.  If you have not officially registered your
trademark, you MAY NOT use the ® symbol.  Doing so may cause your
application to be rejected on the basis of falsely claiming
registration, and courts won't enforce your rights against
infringement if you falsely claim registration.

The entire article is well written and informative, certainly a must
read for anyone contemplating trademark registration:

Correctly Using a trademark  in your daily business
http://www.arvic.com/library/useoftm.asp

For more information about trademarks, The US Patent and Trademark
Office offers a wealth of information:

US Patent and Trademark Office
http://www.uspto.gov/

I hope this answers your question!

--Missy

Search terms: [ "Trademark FAQ" ]

---

Request for Answer Clarification by leosd-ga on 30 Oct 2002 09:56 PST

Missy-Thank you for quick response.  May I explain that most of what
you provide I was aware of by searching the GOV sites.  My question is
primarily focused on wheather one can trademark or copyright ones name
under common law rather than fed law. As my birth name, being used in
all capital letters is the only way one can function in commerce, I
want to exercise control over it, as it is my property and I want to
do it through a common law principle. I want to avoid any judicial
process if possible to accomplish this and that is why I seek common
law protection. I have been unable to find anything concrete which
states that one can exercise these rights under the common law as well
as statute law. Thank you.

---

Clarification of Answer by missy-ga on 30 Oct 2002 10:46 PST

Hello again,

You cannot copyright your name at all.  Copyright *only* applies to
creative works.  Copyright and trademark are completely separate areas
of law, common or otherwise.

The Arvic page I referred you to does deal with trademarking under
"common law":

"Second - Unregistered ("Common Law") Trademarks

Trademarks do not need to be registered in order to have legal
protection against infringement. To serve public notice that this is
your mark place the tm symbol in the upper-right hand corner of the
mark. Do not use the ® symbol unless or until federal registration is
actually issued in the USA. False use of a public notice of the ®
symbol can result in the denial of federal registration or refusal of
enforcement by a court."

Correctly Using a trademark  in your daily business 
http://www.arvic.com/library/useoftm.asp 

You need not use your name in all capitals for commerce.  Your name
"as is" is fine - to use it as a trademark under common law
principles, place the TM symbol in the upper right corner, as
described above, and use it in connection with your goods or services.
 (The page is also titled "Correct Common Law Uses of Trademarks").

Common law protection is not as effective as Federal protections:

"Trademarks

[...]

An owner can protect a trademark by common law or by federal
registration. Common-law protection begins with the first use of a
mark and is indicated by TM, while federal registration requires a
more complicated procedure.

Why Register a Trademark?

An unregistered trademark (TM) is protected by common law only within
states where it is used. When a trademark is used in interstate
commerce experts suggest that it is in the owner's best interests to
register the trademark (®) with the Federal Patent and Trademark
Office (PTO). Such registration guarantees ownership of the mark and
entitlement to its use throughout the nation."

Intellectual Property Protection
http://www.cftech.com/BrainBank/BUSINESSLAW/IntellecPropProtec.html

By way of example, let's say you name your company Leosd do business
in South Dakota (just a wild guess, based on your user name), and only
there.  Leosd(TM) is protected under common law in South Dakota.  That
only legally prevents someone in South Dakota from using your name for
their business.  I can call my business in Ohio Leosd(TM), and you
wouldn't be able to stop me from doing so unless you had been doing
business here first.

Here's a bit more on common law and trademarks:

"Common Law Protection:Ownership of trademarks under common law is
strictly derived from actual use of the mark on goods, and, then, only
within the geographic area of use. The exclusive right to a trademark
belongs to the person or entity who first uses it in connection with
specific goods. Traditionally, neither advertising nor an intent to
use the mark established trademark rights."

How To Protect A Trademark
http://www.ip-law.co.il/DomainNames/howtotm.htm

"Registration of trademarks is not compulsory. Common law rights
actuallybegin when a mark is first used in connection with the goods
or services before the public. These trademark rights are enforceable
in local courts, but are limited geographically to your actual area of
use."

A Guide To Trademarks
http://www.wsrgm.com/tm.html

"Common law protection generally arises where someone is using a
trademark  for a period of time thereby establishing right of first
use.  Meaning, that they establish the mark in commerce, use it with
their product (or services) and have done so without interruption for
a regular period of time."

THE VALUE OF INTELLECTUAL PROPERTY RIGHTS FOR THE INTERNET START-UP
http://netbyz.com/article13.htm

"What is a "common law trademark right?"

Once a trademark is successfully registered with the USPTO, certain
statutory rights are created protecting the trademark owner. However,
the general rule often referred to as "first-in-time"--The first
person or entity to use a trademark in commerce receives common law
protection for the use of that trademark."

Learn About Trademarks
http://www.mycorporation.com/tminfo/faq.htm

(Please note that these are merely exceprts - I cannot reproduce the
entire articles here due to copyright restrictions, but you may read
the articles in their entirety by following the links provided.)

Whether under common or statutory law, a trademark is only recognized
as such when actually used in connection with goods and services.  You
may not trademark your name to prevent someone else from giving their
child the same name, you may only trademark it to prevent someone else
from using it for their business.

Hope this clears things up!

--Missy

---

Request for Answer Clarification by leosd-ga on 30 Oct 2002 15:11 PST

Thank you missy,
You have supplied the sites I need to peruse.  Is there anything you
know of that specifically states who is the undisputed "owner" of ones
birthname? Is it property?
Is there any "requirement" to file for a common law trademark for ones
birthname if used as a business name?
I feel you have more than earned the fee I agreed upon, so I am going
to increase the amount paid.
Thanks

---

Clarification of Answer by missy-ga on 30 Oct 2002 15:48 PST

Hi again!

I'm glad you're satisfied with your answer.

A birth name isn't "property" as such - personal names, because of
their non-unique nature and the intricacies of family and marital
naming conventions, cannot be owned.

It becomes "intellectual property" of a sort if you use it for the
name of your business.

There is no *requirement* to register your trademark prior to using it
in commerce - simply using it and giving public notice that it is your
trademark (with the (TM) symbol) is sufficient under common law
practices - but if you want to be well protected in case of
infringement, it would be in your best interests to do so.

Good luck!  Please do come back to us if you need more research done!

--Missy

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Request for Answer Clarification by leosd-ga on 03 Aug 2003 13:15 PDT

Hi Missy,
I have a new question you may help with.
I have found there is an account with the secty of the treasury in my
name and under my SS#.  this accnt was established when my birth
certificate was submitted from my state of birth.  This account was
opened in an unkn amount by the government and used as collateral for
the bonds that are issued by the government when they borrow money
from the Federal Reserve.  I have found out enough so far to convince
me of this.  what I want to find out if possible, is who decided what
amount to open that for and what was it based on?  What empower's the
governemtn to do this and what was the amount set up at that original
time, and what is the amount in that account now?

Care to try this one?

---

Clarification of Answer by missy-ga on 03 Aug 2003 19:53 PDT

Hi Leo!

It's so nice to see you back!

What an intriguing question you have!  I don't think I've ever heard
of this practice before.

If you'd like me (or any other Researcher, for that matter) to look
into this for you, please post a new question, and include as much
detail about it as you can EXCEPT for your SSN and your full name.

Tell us the state you were born in, as well as how you came across
this information, and what you've already managed to find out (so we
don't duplicate your research).

You can tag it for my attention by putting my name in the subject
line, or just leave it open for any researcher to tackle.

Thanks for coming back to see us again!  It's always nice to see a
return customer.

--Missy

Most cogent response and straight to the point of question.