The family name as a brand in separation and divorce

A guest article by Attorney Manuel Kruppe

In times of growing entrepreneurial autonomy and the increasing visibility of personal brands, protecting one's own name is becoming increasingly important – especially in family and business contexts. But what happens if a family relationship in which the shared name has become a trademark ends in separation or divorce? The following article examines the legal implications of trademark-protected use of a name in the event of a dissolution of family relationships.

1. The family name as a trademark – a legal classification

A family name can generally be protected as a trademark within the meaning of Section 3 of the Trademark Act (TMG) if it is suitable for distinguishing the goods or services of one company from those of others. In practice, this particularly applies to family businesses that have been built over generations – but also to modern constellations such as "married couples as brands" in social media, fashion, gastronomy, or consulting.

If there is a lack of original distinctiveness, it requires commercial enforcement.

A family name is often used jointly for business purposes – whether as part of a company name or a word mark. This use can occur either through a partnership (e.g., a GbR or GmbH) or informally through joint economic activity. Legal rights to the trademark can arise through contractual agreements even without registration; however, registration establishes a clear formal assignment.

In a marriage context, one spouse is often registered as the formal owner of the trademark, while the other partner may also be significantly involved in its development and use – without legal protection. Legal uncertainties arise when the marriage breaks down.

3. Separation and divorce – consequences for trademark rights of use

If a separation or divorce occurs, the question arises as to who may continue to use the trademark. Under trademark law, the registration status is crucial: The registered owner has exclusive rights of use (Section 14 of the Trademark Act). However, civil law claims may also arise, for example, in cases of unfaithful use. But what if the trademark is based on the shared family name, which now only one of the partners wants to use?

German naming law (Section 1355 of the German Civil Code) allows a divorced spouse to retain or abandon their married name. The legal status of a name can therefore change – which does not necessarily affect trademark ownership, but can be conflicting if the trademark continues to be identified with the other spouse.

4. The tension: trademark law vs. personality rights

When a family name is used as a trademark, tension arises between trademark protection and the general personality rights of the name holder (Section 12 of the German Civil Code). This becomes particularly problematic if one of the ex-spouses objects to the continued use of the name as a trademark – for example, because they no longer want to identify with the company or fear reputational damage.

Such cases have been rare in case law so far, but comparable constellations (e.g., with stage names or company successions) demonstrate that the balancing of interests depends on the context. The basic rule is: The use of a trademark must not violate the legitimate interests of third parties – including those of the spouse who gave the name.

5. Design options and legal advice

To avoid conflicts, a contractual arrangement is recommended – ideally before trademark registration or, at the latest, as part of a marriage contract or partnership agreement. The following measures are useful:

License agreements: One spouse can allow the other to use a trademark for a fee or free of charge.
Joint usage rights: These can be granted contractually and recorded in the register.
Waivers: As part of the divorce, a spouse can waive any rights of use.
Transfers: In individual cases, the trademark can be transferred to a spouse, possibly in return for compensation.

6. Conclusion

The connection between family name, trademark, and marriage harbors considerable potential for legal conflict. What began as a joint project in happy times can become a legal bone of contention in the event of a divorce. This makes forward-looking legal planning all the more important – both in family law and trademark law.

Anyone who finds themselves in such a situation or wants to take precautions should seek competent legal advice in good time.

For further information and legal advice, please contact:
www.jetzt-scheiden-lassen.de

Attorney Manuel Kruppe