Surname (nom patronymique)

The surname, or family name, is the element of civil status that identifies an individual and links him or her to a family. It is an attribute of personality, inalienable and not subject to loss through lapse of time, and not an asset capable of appropriation. It nonetheless enters the field of intellectual property when it is used as a trade mark, company name, trade name or shop sign, where it detaches itself from the person to become a distinctive sign.

The nature of the right in the name

The name belongs to the personality rights. Its holder may object to usurpation, that is, to the use of his or her name by a third party in a manner creating confusion as to identity or causing him or her harm, without having to prove a separate fault. Homonymy is not in itself usurpation, since everyone is entitled to bear his or her own name, and the court looks for a likelihood of confusion or damage to reputation.

Use of the name as a distinctive sign

The name may be registered as a surname trade mark by its bearer or, with the bearer’s consent, by a third party. The Court of Cassation holds that a name incorporated in a company name or a trade mark, with the agreement of its holder, detaches itself from the person to become a distinctive sign that is the object of intangible property, so that the bearer cannot subsequently take back what he or she has consented to, nor object to the transfer of the sign together with the business. It holds, on the other hand, that consent given to the use of the name as a company name does not, by itself, amount to consent to the registration of the name as a trade mark, which requires specific agreement. The registration of a well-known person’s name without his or her agreement may be declared invalid for infringement of a personality right or for fraud.

Conflicts between names and trade marks

The proprietor of a trade mark cannot prohibit a natural person from using his or her surname in the course of trade where that use is in accordance with honest practices (Article L. 713-6 of the French Intellectual Property Code). This limitation benefits natural persons only, so that a company cannot invoke it for its own name. Conversely, infringement of a personality right, in particular of a surname, is a relative ground for refusal or invalidity of a trade mark. The bearer of a name that has become a trade mark who starts a new business must refrain from any use creating confusion with the earlier mark.

Litigation

Usurpation of a name falls within the jurisdiction of the judicial court, which may order the use to cease and award compensation for the harm. Where the dispute involves a trade mark, the invalidity action or the trade mark infringement action is governed by the rules of trade mark law. Litigation is concentrated in the fashion, gastronomy and wine houses, where a founder who has sold the business wishes to carry on an activity under his or her own name.

Key points

The surname is an inalienable attribute of personality which becomes a transferable distinctive sign when it is incorporated, with its bearer’s agreement, in a trade mark or a company name. Consent given for one use does not extend to another. Before registering a surname as a trade mark, obtain the bearer’s written and specific agreement, and provide by contract for what happens to the name if the founder leaves.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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