First off, hello DuetsBlog! I’m delighted to join Steve and the rest of the team here, and I hope I can add to the excellent content that authors past and present have brought to the site.
I’ll start my post with a statement that’s obvious to all trademark lawyers: brands can be valuable assets. One reason for this is that many customers form a lifetime devotion to their favorite brand, and they pass that devotion on to their children.
This is particularly true when it comes to food. I know that when it comes to pickles, I am loyal to Claussen, both because my parents bought them exclusively when I was a child and because the company’s headquarters is in my childhood home of Woodstock, Illinois. It’s a one-two punch that Vlasic just can’t match.
Two brave souls in France took this sort of brand loyalty even further — by attempting to name their newborn daughter “Nutella,” after the famous chocolate-hazelnut spread of questionable nutritional value.
Unfortunately for them (or perhaps fortunately for the daughter), the local court in France blocked the new moniker, ordering that the child be named “Ella” instead. The judge stated that “Nutella” is a trade name, and as such “it is contrary to the child’s interest to have a name that can only lead to teasing or disparaging thoughts.” Clearly, this judge prefers jam on his toast.
If only the parents lived in the United States, then they may likely have realized their dream. While many European countries place various restrictions on baby names, American parents may generally use a trademark as a personal name, so long as it is a word mark and both parents consent to the name. Brand loyalty may have some limits abroad, but the courts on our shores would hardly object to baby Nutella.
That said, American courts have stepped in when the name is not actually a word (the Roman numeral “III”) or, more controversially, on religious grounds (“Messiah”).
Of course, personal names are not impervious to trademark infringement. Personal names may not be used in a confusingly-similar fashion to a senior trademark, particularly a famous mark. And marks that are “primarily merely a surname” are generally not registrable in the U.S. This is bad news for the Marriotts of the world who want to start a family hotel chain, or a Mott with a breakthrough recipe for apple sauce (as opposed to baby food).
As for baby Ella: if there’s a silver lining in all this, it’s that she will have far less trouble starting up her own hazelnut spread business.