As a stand-up comedian, you can register your stage name as a trademark just like any other brand name. However, as with any other business or product name, a comedian’s stage name must function as a trademark first.
That is, it must identify the comedian as the source of some product or service transacted in interstate commerce.
In other words, ask yourself whether your stage name informs consumers that you are selling something. Is your stage name doing something other than generally identifying you as a human being?
Stand-Up Comedian Stage Names: Use In Commerce Required
Trademark registration exists in US law not only to protect your rights in your stage name but to protect consumers’ right to know what they are buying and from whom.
It does not protect your stand-up comedy stage name (which may be your actual name) simply because it is yours. Or because you thought it up.
It exists to ensure that, when someone in Ohio or Indiana buys a ticket to your headliner at Mark Ridley’s Comedy Castle in Royal Oak or some other venue in Michigan, they meant to buy a ticket for your show. Not some other comedian’s showcase whose name may be confusingly similar to yours.
A Powerful Tool to Protect Your Comedy Brand
Trademark registration in the US gives you the exclusive right to the commercial use of your stage name anywhere in the country. Any other comedian who works under that stage-name will be infringing upon your registered trademark.
Registration will allow you to issue that comedian a cease and desist letter and file suit in Federal Court for trademark infringement. You could seek a court-ordered injunction requiring that comedian to cease use of the stage-name in commerce. You could, potentially, have t-shirts and other merchandise bearing the infringing stage-name turned over or destroyed.
It is a powerful tool that protects your commercial interest in the stage name while, indeed, protecting consumers from confusion in the comedy marketplace.
However, in order to register your stand-up comedy stage name as a US trademark, it must be “in use in commerce.” That is, you must use your stage name in advertising, marketing, or in some manner associated publicly with the product or service you sell over state lines.
If you only perform stand-up in your garage for your increasingly weary family, you are not “in use in commerce.” Instead, ask yourself when you last sold a ticket to a comedy fan in another state? That is the question that will determine the registrability of your stand-up stage name as a trademark.
Stage Names as Trademarks: What Is Your Product?
Copyright registration is appropriate for the protection of a creative or literary work. Under US copyright law, you can protect your creative work simply because—you created it.
Not so with trademark registration.
A trademark is, of course, a “mark” used in “trade.” So, as a stand-up comedian, what is your trade?
As with trademarks for bands and musicians, you may register your stand-up comedy stage name as a trademark in relation to a number of different products or services. The stage name is not simply reserved for all purposes, everywhere. (The media commonly gets this wrong.)
For example, if you sell t-shirts or wearing apparel under the name “Mermaid,” you would file a trademark registration application under International Class 25, for wearing apparel, and t-shirts in particular. This would not prevent someone else from registering the word “Mermaid” in association with, say, computer microprocessors under International Class 9. This is because it is unlikely that your t-shirt company would be confused with a microprocessor manufacturer.
For a stand-up comedian, the obvious service that you provide is entertainment, right? (One hopes, anyway.) Entertainment services are included under Class 41. (It is a broad class, and you’ll need to be a bit more specific about what sort of entertainment you provide as a stand-up comedian.)
What else?
Do you sell an album or CD? How about t-shirts or stickers or other merchandise? CDs and other pre-recorded videos are filed under Class 9, while the t-shirts are back in our wearing apparel Class 25. Stickers and other printed matter fall into yet another International Class.
In short, you can’t register your stand-up comedy stage name as a trademark just because you’ve picked one. Specificity is required. There might be a computer microprocessor manufacturer out there with your name on its packaging, otherwise.
Last Names or Surnames as Trademarks
What if your stage name is your actual name? Any issues there with registering it as a US trademark?
The first problem here is that, under US law, you cannot register a term that is “primarily a surname” as a trademark.
Why is this?
One of the most common reasons for the denial of a trademark registration application is that the proposed mark is generic or merely descriptive of the goods or services in question. A name or word must be sufficiently unique to specifically identify the applicant as the source of those specific good or services.
For example, a company in Detroit that sells, say, magnets, will not be able to register the name DETROIT MAGNET COMPANY. This is because the name only describes the product sold (and very generically) and the geographic area from which it is sold. (You also cannot register a geographic place name.)
The reasoning behind this rule is that allowing such a registration would lock any other magnet company out of the US trademark register. It is too common a word to be reserved for the specific use of the Detroit Magnet Company. What about the Ann Arbor, Michigan Magnet Company, otherwise? Could that company register its name? And wouldn’t consumers become quickly confused as to who is selling which magnet?
When it comes to surnames and stage names, the problem is equivalent. If your name is Ted Smith, allowing you to register the name SMITH as a trademark would be a big problem for the many, many other Smiths floating around the United States.
That said, you will generally have better luck, all the way around, if your stage name or surname isn’t “Smith” or something else as common.
But My Stage Name Isn’t My Actual Surname!
It does not, by the way, matter that your stage name is not your actual name. Your actual name may be Horace Q. Coznofowski while your (understandably adopted) stage name may be Harry Smith.
“Smith” is still a surname, regardless of the fact that it may not be the surname on your birth certificate.
The Stage Name Must Function Primarily as a Trademark
A mark must also function primarily as a trademark.
That is, it must serve the purpose of identifying you as the source of your product or service to consumers. If it is primarily serving the purpose of identifying you¸ generally (because it’s your name), this requirement is going unfulfilled.
The USPTO will reject your trademark registration application.
Surnames as Trademarks: Acquired Distinctiveness
Does this mean that you can’t register a stage name or surname as a trademark at all?
Unless a term is totally generic (like “magnets”), it is registrable as a trademark once it has acquired distinctiveness in the eyes of US consumers.
This means that, no mater that the name is descriptive or even a common surname, if US consumers hear or see that name and think of you, the greatest stand-up comic who ever lived, it can be registered as a trademark.
The requirements for proving this to the USPTO are complex and outside of the scope of this Article. However, the initial requirement is worth mentioning. This is that the stage name must have been in use in interstate commerce in association with your stand-up comedy act for 5 continuous years, minimally.
Read more about acquired distinctiveness in trademark registration here.
Authorization of Person Named In Trademark Required
Regardless of the fact that you are filing a trademark registration application for your own stage name, you will need to provide a written authorization consenting to the registration of the name.
The comedian Tiffany Haddish received an Office Action refusal for failing to do this in her initial trademark registration application, for example. See USPTO pleading here.
Talk to a Metro Detroit Trademark Attorney About Your Stage Name
If you are a stand-up comedian or other performer interested in protecting your stage name and brand, you will maximize your odds of success by retaining an experienced Michigan trademark attorney.
Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting entrepreneurs, solopreneurs, artists, musicians, start-ups, and larger enterprises with robust intellectual property portfolios, and others in all industries with trademark registration, trademark renewal, and Office Action refusal response matters.
You don’t need to hire a lawyer down the street just because she is down the street. Trademark law is a Federal practice area, and we represent clients across all 50 states—and globally—for US trademark registration and renewal matters.
We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.