Sometimes, a mark that suffers from the ailment of being generic, descriptive, or primarily a surname (or some other problems) can be registered on the USPTO’s Supplemental Register, which is like the opening band before the main act (or the junior varsity team if you prefer a sports metaphor). It doesn’t give you the full rights being on the Main Register does, but it’s better than having no kind of registration. Then, over time, the mark may gain enough fame to qualify to be on the Main Register.

It’s far better, though, if you can, to start with a name that qualifies for the Main Register.

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Many businesses are named after their founders, but if your business name is primarily a surname, you could run into trademark challenges. The USPTO generally considers surnames to be not inherently distinctive, meaning they don’t qualify for trademark protection unless you can prove that the mark is more than just a surname.

For example, “Jagger’s Bakery” or “Richards Consulting” may not be eligible for trademark registration unless you can demonstrate one of the following:

• Consumers associate that surname specifically with your business, rather than just recognizing it as a common last name;
• The mark has a secondary meaning, like King standing for the concept of royalty or being the biggest or best, like “I’m a King Bee,” not just being my last name; or
• There are other important words in the mark that make the mark more than just a surname (these have to be words that aren’t generic or descriptive terms).

Big brands like McDonald’s and Ford successfully registered their names because they built strong brand recognition over time, but new businesses using common surnames will face an uphill battle in securing exclusive rights.

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The U.S. Patent and Trademark Office (USPTO) won’t grant trademark protection to business names that are purely generic (e.g., “The Coffee Shop” for a café) or merely descriptive without acquired distinctiveness (e.g., “Cold & Refreshing” for a bottled water brand). Here’s why:

1. Generic Names Can’t Be Owned. A generic term is simply the common name for a product or service. No one business can claim exclusive rights to “Pizza Restaurant” or “Lawn Care Services” because those terms must remain available for everyone in the industry to use. You can have those in your name, but you’d better also have something non-generic and non-descriptive with them, like “Bluebird Pizza Restaurant” (unless you are in a town named Bluebird, because locations are also a no-go as generic).
2. Descriptive Names Are Weak. A name that merely describes the goods or services, like “Tasty Burgers” for a fast-food joint, will face serious hurdles in the trademark process. The USPTO may reject it unless you can prove that customers associate the name specifically with your business over time (which often requires years of strong marketing and consumer recognition).

Take the case of Booking.com. Initially, “booking” was deemed too generic to trademark. However, the company was able to prove through extensive evidence that consumers recognized “Booking.com” as a distinct brand rather than just a category of service. This is an exception, not the rule; most businesses don’t have the resources to establish this level of brand recognition, especially at the beginning.

(This discussion of generic trademarks is different from how a trademark can become generic, which is known as genericide. That's a topic for another post.)

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