Can you trademark your name as an author or performer? Sometimes! Whether your name can function as a trademark depends on how you're using it and what you're using it for.
Federal trademark law draws a meaningful distinction between a name that identifies who created something and a name that identifies the source of a series of works. Those two things can overlap, but they don't always, and the difference determines whether you can register your name with the USPTO.
Why Author and Performer Names Get Refused
When an author's name appears on a book, or a performer's name appears on a recording, the USPTO's default assumption is that the name is doing what names do: identifying the person who made the thing. That is not the same as functioning as a trademark, which identifies the commercial source of goods.
The Trademark Trial and Appeal Board addressed this directly in In re First Draft, Inc., a case involving the pen name FERN MICHAELS. The applicant had used the name for 30 years, published 67 books under the pseudonym, and sold approximately 60 million copies. Despite this massive success, the Board held that the name did not function as a trademark. Why? Because the applicant failed to provide sufficient evidence showing either that the author exercised strict quality control over the n, or that the name had been promoted heavily enough as a series identifier for consumers to "know what they are getting"
Sales and longevity of use on their own are not enough. The question is whether consumers perceive the name as a brand, or simply as a byline.
When Registration Is Possible
A name can be registered if it meets two requirements. First, it must be used on a series of at least two different works, not multiple formats of the same work. A book available in print and as an audiobook does not establish a series. Two different books do. Second, the record must show that the name functions as a source identifier for the series, not merely as a designation of who wrote or performed the individual works.
There are two ways to establish that source-identifier function.
Promotion and recognition. Evidence that third parties have used your name to refer to your body of work as a series, rather than just as a credit, supports the argument that the name is functioning as a brand. This can include advertising that positions the name as the source of a catalog, third-party reviews referencing your name in connection with a series, and website or social media evidence showing the name associated with a body of work. In In re ZeroSix, LLC, the Board found that the name BOYS WORLD functioned as a mark for musical recordings in part because streaming platforms, publications, and social media reflected widespread recognition of the group as the source of a series of works, not just the performers on individual tracks.
Control over quality. Alternatively, you can show that the name functions as a mark by demonstrating control over the nature and quality of the goods. The clearest path here is documentary evidence: license agreements, production contracts, or other instruments that show someone controls the quality of the works released under the name. If you personally publish or produce the works yourself, a verified statement to that effect can serve this purpose. The Board in In re Polar Music Int'l AB found that ABBA functioned as a mark for sound recordings based in significant part on license agreements showing the group controlled the quality of goods and authorized use of the name.
A Note on Original Works of Art
The rules are different for visual artists. An artist's name or signature affixed to an original work of art, including paintings, sculptures, jewelry, and similar works, can be registered without a showing of a series. The Board recognized in In re Wood that an artist's signature on an original work of art functions as a mark. This is a narrower exception than it might appear: it applies specifically to original visual art and has not been extended to books, recordings, or other creative works.
What About Intent-to-Use Applications?
If you file an intent-to-use application before you've begun selling works under your name, the USPTO will generally hold off on issuing a refusal until you submit specimens with your allegation of use. The examiner may flag the potential issue as a courtesy in the first office action, but the analysis is usually deferred until there is actual use to evaluate.
If you're building a brand around your name as a creator, the right time to think about trademark protection is before you've invested years in building recognition under a name that may face obstacles at the USPTO. A consultation can help you understand where you stand and what steps, if any, would strengthen your position. Schedule a free consultation here.
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