Acquired distinctiveness

Under Canadian trademark law, a trademark cannot be registered if it is primarily merely the name or the surname of an individual who either is living or has died within the preceding thirty years. However, an exception is made for names and surnames that have become distinctive.

In general, the name and surname of an individual are not acceptable as trademarks because they lack distinctiveness, that is, they are not capable distinguishing the goods or services of one person from those of other persons bearing the same name or surname. However, the long use of a name or surname with particular goods or services can cause the name or surname to acquire distinctiveness and thus become registrable. For instance, the surname Coles, which was found to be primarily merely a surname, originally lacked distinctiveness and was not capable of distinguishing the book stores of the trademark applicant from the book stores of others bearing the same name. However, the long use of Coles by the trademark applicant caused the surname to become distinctive of the applicant's book stores. Thus, the surname Coles was said to have acquired distinctiveness in connection with book stores and was eventually allowed registration on that basis.