A minor can register a trademark only if the minor’s “domicile” state allows the minor, in the minor’s individual capacity, to (1) enter into legal agreements, or to (2) sue another or to face a suit. TMEP § 803.01. Here, the “domicile” state is the state that one intends to make their “principal home.” See 37 C.F.R § 2.2(o); see also TMEP § 803.05(a).
For example, if the minor may contract, then the minor can file trademark applications with the United States Patent and Trademark Office (“USPTO”) as the “Applicant.”
Conversely, if the state in which the child resides does not allow another entity to subject a child to a suit, then the child cannot register a trademark. Instead, in that instance, the parent or legal guardian must file a trademark for registration on behalf of the child.
Table of Contents
1. Can I File a Trademark For My Child?
Yes. However, please consider the privacy of your child; the USPTO cannot redact the child’s name and will require you to disclose their full legal name. There are only two minor (pardon the pun) issues to keep in mind: (1) the applicant’s name, and (2) a possible name consent.
A. The Applicant’s Name Must Include the Minor
When filing a trademark for a child, we always use the parent’s name plus the child’s name to register the trademark. So, for example, the Applicant field may read like this:
JOHN DOE, U.S. Citizen, [as the parent/legal guardian] of LITTLE DOE
See TMEP § 803.01.
B. The Parent Must Sign a Name Consent if the Child’s Name is Used
If a trademark uses a living minor’s name, likeness, or appearance, then a “name consent” is necessary. See 15 U.S.C. §1052(c). A name consent is a permission in signed writing from the living individual whose name or likeness is identified by the trademark. TMEP § 1206.04(a).
If the state in which the minor resides allows the minor to enter into agreements or bring suit, then the minor may sign the name consent. On the other hand, if the state does not allow the minor to face a civil lawsuit, then the parent/legal guardian must sign the name consent.
2. The USPTO Will Issue an “Inquiry Regarding State Law”
While a minor can register for a trademark, the USPTO will issue an Office Action for “Inquiry Regarding State Law.” In the inquiry, the USPTO must ask if the child may enter into agreements, or sue or be sued in the state in which the minor resides. See TMEP § 1206.04(a) (explaining that “if the . . . name or likeness . . . in the mark is [that of a] minor, the examining attorney must inquire as to whether the [minor] can validly enter into binding legal obligations under the law of the state in which he or she is domiciled.”).
The solution is fairly simple, draft a memorandum explaining whether the minor has the independent legal capacity to enter into legal agreements. If the child may not enter into legal agreements, the parent/legal guardian must sign the trademark.
3. How Is It Possible for Children to Register Trademarks If They Cannot Lawfully Contract?
If it seems obvious enough that minors in the United States may not enter into legally binding contracts, sue or face suit in their individual capacity, then why would the USPTO ask this question?
The answer may turn on emancipated children. Please keep in mind that several U.S. States enacted laws for “emancipated minors” that provide greater legal agency to children. Generally, emancipated minors may sue and be sued in their individual capacity. They may also enter into legal obligations independently. This is likely the basis for Trademark Manuel of Examining Procedure Section 803.01, and the basis for a child to register to obtain a registered trademark symbol. TMEP § 803.01.
4. Conclusion and Recommendation
In summary, whether a minor can register a trademark depends on the state in which the minor resides. If the state allows children to enter into contracts independently, then the child may file the trademark in their name. In contrast, if the state does not give minors legal agency, then the minor must obtain parental/guardian signature. In addition, if the child’s likeness appears, use the same analysis for a name consent. Finally, the USPTO issues an “Inquiry Regarding State Law” if there is a question regarding a minor’s involvement.
If you want to file a trademark for your child, we recommend hiring a qualified U.S.-licensed trademark attorney. We offer low flat fee trademark services, an easy-to-use online registration form, and an easy, 3-step process. You can contact us at asyed@syedlawoffices.com or 312-618-0713, and we will get back to you within 24 hours.
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