Registering Public Figures as Trademarks

Dear Rich: How would the U.S. Patent and Trademark Office respond if I altered a public domain photo of a long-deceased public figure and submitted it as a trademark? The short answer is that you'll probably have a hard time. Unlike Zazzle (see our previous post), the USPTO does not have an automatic rejection policy for images of public figures as trademarks. And unlike the Copyright Office, the USPTO isn't particularly interested in your legal rights to reproduce the image. However, there are some USPTO rules that make it difficult to achieve your objective. Most importantly, you cannot use the image of a living or deceased person if it disparages or falsely suggests a connection with that person. So, for example, the Dear Rich Staff reports that the only individual who has registered the name John Dillinger as a trademark (Reg. 2809305) is his great-nephew who claims the right of publicity under Indiana law. In other words, don't expect to be able to use the image of Babe Ruth to sell baseballs, or Elvis Presley's picture to sell pomade, unless you have a legal basis for exploiting the famous person. Also, you cannot use the image of a deceased president while the president's spouse is alive (unless you obtain the spouse's consent).