Recently retired NFL quarterback, seven-time Super Bowl champion, and NFT digital platform co-founder, Tom Brady adds clothing designer to his long resume. Shortly before announcing the end of his football career, Tom Brady officially unveiled his namesake brand BRADY, a distinctive clothing line with apparel that “performs across every activity—because life is a sport.” [i]
The Brady brand mark has not been granted federal trademark rights, thus only enjoys the limited protection of common law rights. The general rule is that surnames are not capable of being trademarked without proof that the mark has acquired distinctiveness. [ii]
This rule addresses the reality that last names are naturally shared by multiple people and if more than one person with that last name creates the same goods, there would be chaos and confusion over who made what. While Brady may already be distinguishable as it relates to his long football career, it does not have the same level of recognition with clothing as McDonalds has with burgers or Ford has with trucks.
If Tom Brady didn’t share his last name with over 100,000 Americans and a beloved 60’s sitcom family, there may have been less obstacles to obtaining a federal registration, as rare surnames can often function as trademarks without proving distinctiveness. This isn’t the first time Brady’s common name has stifled his trademark ambitions. If you recall, in 2019, his application for the nickname “Tom Terrific” was heavily opposed by fans of Hall of Fame pitcher Tom Seaver and was later abandoned at the US Patent and Trademark Office.[iii]
Along with rarity, additional factors that play into whether a last name is capable of being registered as a trademark or not include whether the surname has any other meaning other than as a surname and whether the surname has the “look and feel” of a surname.
If you are considering creating a trademark for your brand, perhaps you should shy away from including your last name, if it is a more common one. Often the strongest trademarks are the ones that are completely made up and unique to your business, like Adidas or Häagen-Dazs.
[ii] 15 U.S.C. 1127, 1052.