The question raised is whether a person has the right to use his or her surname in the conduct of business. The case law is clear that a person cannot use their surname if is likely to cause confusion with a prior used mark. In Miller Brewing Company v. Premier Beverages, Inc. 1981 TTAB LEXIS 51, 10-12 (Trademark Trial & App. Bd. Mar. 3, 1981), the Board provides the following summary regarding this issue:
A person obviously has a right to use one's own name in his or her daily life's experiences and encounters. Nonetheless, this right is not absolute. That is, although one may legally use his own name, the use thereof in connection with a business may be circumscribed if it encroaches upon the good-will acquired by another through prior use of the same or a similar mark and is likely to confuse or mislead the public as to the ownership of the business or of goods emanating therefrom. It has thus been held that:
". . . . where a person chooses to use his own name as a trademark, the name immediately becomes a separate and distinct element, devoid of any connection with its owner's personality, and registration thereof is therefore subject to the same rules and principles of law which apply to all nonsurname types of marks". [In re National Cycle Service Inc., 194 USPQ 97 (TTAB, 1976)].
The policy reasons for this position can be found in Ford Motor Company v. Ford, 174 USPQ 456 (CCPA, 1976), wherein the court stated that:
". . . . the interest in allowing an entrepreneur to use his own surname as a trademark on his goods must give way to the more compelling public and private interests involved in avoiding a likelihood of confusion or mistake as to source where use of the surname leads to such confusion or mistake".Though the lawsuit between Van Halen and Kelly Van Halen may bring forth a lot of media attention, this case is pretty cut-and-dry; in regards to the trademark infringement cause of action, the case will be determined as to whether there it is a likelihood of confusion. In other words, in the mind of a consumer, is it likely that the source of products containing the “KellyVanHalen” mark would be confused with those originating from the manufacturer of products under the Val Halen mark.