This Baby Brought to You By

Should expectant parents be allowed to sell naming rights to their baby? That was the question that came up in a dinner party conversation last weekend; the informal betting was that we will see this happening by the end of the decade. It’s a semi-serious possibility, and the question is whether ethics or policy should or will intervene. If regulation follows, what form should it take?

First, consider the possible forms that the practice could take: “Sarah, from Pampers.” “Asha, from Coke.” “Michael, from Nike.” Or children could be named “adidas” or “Gatorade”; the parents could bank college tuition up front. Ten years ago, I had a student who named her child Starbuck, a la Moby Dick. Now I wonder whether she left money on the table.

Second, consider the shape of the deals. Rights could be time-limited, so that they expire after some term of years, or perhaps on the child’s maturity. The child could have the option to renew, again for a time-limited period or perhaps in perpetuity. “Reach-through” naming might arise but present a problem; children might object if grandparents endowed them with covenants that required certain (sponsored) names for their own offspring. Fees could be fixed (with discounts for payment up front), or they could be payable periodically, perhaps on a sliding scale. Nike the company would pay more if Nike the child got accepted to Stanford, for example, or for lesser but still remarkable accomplishments. Named captain of the debate team? Little Nabisco would score some extra bucks for his folks.

Third, there are some IP complications to work out. Naming rights for children sound more than a little like domain names. What if you name your kid Nike but don’t get Nike’s permission? Is the mother of Starbuck at risk of some kind of baby-name-squatting claim? Priority issues would arise (Pepsi #1, Pepsi #2, and so forth; Pepsi would need to consider its baby portfolio in calculating how much it could spend on rights). Appropriation issues ensue (if you endow your child with a name that is substantially similar to that of a sponsored child, can the sponsor sue?). And what about last names and middle names and naming conventions in other cultural (non-American) contexts?

From an IP perspective, most of this seems pretty unexciting, if not uncomplicated, and it’s the progression of IP into nearly all aspects of daily life that prompted our idle speculation last weekend. If identity can be owned, as in some kinds of privacy and publicity contexts, then why can’t identity be sold or licensed? There is the usual commodification/propertization question, but it seems to me that society allows (even encourages) so much objectification and commodification of identity that taking this step is likely to be unremarkable.

I wonder, however, about family law and commercial law. If the parents sell the rights, do the parents get to enforce them? Do the parents get the money, or do they hold it, perhaps in trust, for the child? What happens if the parents get divorced? Remarried? What if the playground decides that the licensed name isn’t cool, and the kid picks up a nickname (or the reverse — the kid picks up a nickname that “belongs” to a corporate sponsor)? And corporate sponsors may die, or merge. Do kids get new names, as sports stadiums do?

I haven’t exhausted the possibilities here. Ah, the brave new world of IP.