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Trademarks, Contract


Identifying one’s business with one’s personal name has long been a practice in the United States. As Personal Name Marks have become increasingly commodified, however, bargaining and deal-making has led more and more to transfers of rights which had previously been considered to be closely tied to the individual as a private person. This article posits that freedom of contract doctrine should not allow the complete alienation of all aspects of one’s name, but rather there should be limitations on how far parties may bargain, so that the purchaser cannot acquire the right to control the seller’s private activities. This article concludes that, in light of constitutional prohibitions, public policy grounds, administrative convenience and other considerations, when selling rights to one’s Personal Name Mark, the most reasonable balance requires placing some limits on the extent to which one may bargain away the personal freedoms associated with one’s name.