Can I use my last name as a trademark?

As a result of a case dealt with in the office and successfully dispatched, we briefly deal with a very common situation, the use of one's own surname as a trademark.

It may be plausible to understand that there is a right to protect our surname as a registered trademark and that no one can prevent such use; in this defense, it is possible to allude to the jurisprudence related to partial homonymy, according to which: “it is admissible the coexistence of marks that present a partial homonymity within a set where the common surname appears framed together with other expressions that allow its individualization, on the basis that everyone has the right to use their surnames.” (Sentencia​ del Tribunal Supremo de 30 de septiembre de 2014, recurso de casación n° 26/2013).

In the same sense, the Supreme Court's decision of November 11, 2005 (Appeal 372/2003) declares the admissibility of the coexistence of trademarks that correspond to the surnames of their owners, but this "partial homonymy must be presented in a group where the common surname appears framed together with other expressions that allow its individualization”.​ 

That in other words, if there are not enough differentiating elements that allow the individualization of the opposing distinctive signs, if their overall impression is very similar, this right will not be maintained, and therefore the first registered trademark will prevail.