Trademark law for performer names
 

If Lolly Licksalot doesn't have a trademark on her name, can anyone go out and trademark that stage name? If they do, does she then have to stop using said name or risk being sued?

To put it another way... If a model has an established name she has been using for years and someone simply registers that same name as a domain name and then trademarks it, does the model have any recourse? It could be cybersquatting right? When it comes to the trademark though, is it simply first come, first serve, and she didn't register her name as she should have?

If she has established a common law trademark with long term / widespread public use of the domain then she could challenge any trademark application made.

If the name is valuable, obtain a trademark and negate the risk.

Meaning, if she has been using that name as a porn performer for 4+ years, appeared in multiples movies aired on broadcast networks, events, etc., then she has established a common law trademark?

Now that doesn't stop someone from still trying to trademark the name, but she could then hire an attorney and go after to invalidate the trademark?

You would need to file an objection to the trademark being granted if one was applied for. This means monitoring trademark applications for an application for a trademark of that name.

The best path for you to go down is to apply for the trademark yourself, if the name is valuable enough to protect then why not simply negate the issue by getting the name trademarked ?

An objection isn't even necessary. The USPTO will not let someone TM a stage name identifying a living individual without that person's written consent. It's a separate form that has to be submitted when the application is filed. If you don't have that persons written consent your application will be rejected.

Agreed. Just curious about what recourse the performer may have after I trademark the name. She definitely isn't monitoring trademark applications. (after all, who in the world would be). So once it's trademarked, I'm wondering what, if anything, she can do to stop or otherwise negate the trademark validity.

Disney do, which is why Deadmau5 is having so much trouble getting his head/ears trademarked.

There's probably better advice than I can give you, however this would not be the case in many other countries (Australia for example).

I'm not sure what your relationship is here with the performer or what your end goal is, but reading that paragraph...

Knowing that she's been using the name for 4+ years professionally, and still wanting to trademark it behind her back....that sounds like a pretty dickhead move.

possibly. or maybe there's a lot more to the story that would justify such a move

Like I said, I don't know your relationship with the performer or what your end goal is...just stating how it looks from the outside.

This is directly from US Patent & Trademark Office...

"If the examining attorney decides that a mark should not be registered, the examining attorney will issue a letter (Office action) explaining any substantive reasons for refusal, and any technical or procedural deficiencies in the application. If only minor corrections are required, the examining attorney may contact the applicant by telephone or e-mail (if the applicant has authorized communication by e-mail). If the examining attorney sends an Office action, the applicant's response to the Office action must be received in the Office within six (6) months of the mailing date of the Office action, or the application will be declared abandoned."

If you do not have a consent form signed under the penalty of perjury filed with your application - your application will eventually be rejected. If you perjury yourself and or forge the signature on behalf of the performer you can be criminally prosecuted...

You just can't steal someone's stage name. It's not like a domain name. And even that will be easy for the performer to get back under UDRP.

What pornlaw said...it has nothing to do with how long or anything like that its very simple...first commercial use.

Ask the wrestler Sean Michaels.....

It's interesting the USPTO gave the "Tommy Gunn" trademark to the brunet (more well known) and not the blond (original).

If you have the LollyLicksalot.com someone would be dumb to try to trademark the name.

Thanks to everyone who chimed in and pornlaw for the expert legal advice. Obviously trademark law is very clear with regards to what is acceptable in this type of situation.