Living or recently deceased
Mastering the Law of TrademarksUnder 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. The first consideration is whether the mark the name or the surname of a living individual or an individual who has recently died. In order to ascertain whether a mark is the name or the surname of a living individual, research is typically conducted using Canadian telephone directories.
Fictitious or imaginary names
The name of a fictitious person is not considered to be the name of a person who is living or has died within the last thirty years and therefore is registrable. However, where the fictitious name coincides with the name of a person who is living or has died within the last thirty years, it might not be registrable.
MARCO PECCI
MARCO PECCI has been allowed registration as a trademark for various apparel. "Marco Pecci" was a fictitious name, rather than the name of a living individual or an individual who had recently died, and therefore was registrable.
Viewed in its entirety
In assessing whether a mark is a name or surname, the mark must be considered in its entirety and thus is not necessarily barred from registration merely because a component of the trademark is a name or surname.
SEARS-O-PEDIC
SEARS-O-PEDIC has been allowed registration as a trademark for mattresses and various bedding products. A Canadian court was faced with the issue of whether the trademark was not registrable because the prefix "Sears" was primarily merely a surname. The court dismissed this contention out of hand because the trademark was not "Sears-" but rather "Sears-O-Pedic".
Further Learning Resources
The trademarks practice notice Name or Surname — Paragraph 12(1)(a) of the Trade-marks Act includes an announcement that the Canadian Intellectual Property Office (CIPO) may consider objecting to a mark even if there is an absence of listings of the name or surname in Canadian phone directories.
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