Surnames and Names as Trademarks in Canada (Section 12(1)(a))

In Canada, trademarks that consist primarily of a surname or the name of an individual face special restrictions. These rules are set out in Section 12(1)(a) of the Trademarks Act and are a frequent source of refusals during examination.

This article explains how surnames and personal names are treated under Canadian trademark law, why names of living individuals (or those who died within the last 30 years) are restricted, and what options may be available to applicants.

1. What does Section 12(1)(a) prohibit?

Under Section 12(1)(a), a trademark is not registrable if it is primarily merely the name or surname of an individual who is:

• Living, or
• Deceased within the last 30 years

The rule applies regardless of whether the individual is famous, well known, or related to the applicant.

The purpose of this provision is to prevent businesses from monopolizing personal names that others may legitimately need to use.

2. What counts as a “name” or “surname”?

A name or surname includes:

• Common last names (e.g., family names)
• Full personal names (first name + last name)
• Names that would be perceived by the public primarily as a person’s name

The analysis focuses on public perception. If the average Canadian consumer would view the mark mainly as a personal name rather than as a brand, Section 12(1)(a) may apply.

It is not necessary that the examiner identify a specific individual; the question is whether the mark is primarily understood as a name or surname.

3. Living persons and the 30-year rule

Section 12(1)(a) applies to:

• Names of living individuals, and
• Names of individuals who have died within the last 30 years

Once an individual has been deceased for more than 30 years, this specific restriction no longer applies. However, other trademark grounds (such as descriptiveness or confusion) may still be relevant.

The rule applies even if the applicant is the individual themselves or a company associated with that individual.

4. Why does Canadian law restrict surnames and names?

The restriction reflects a policy concern about fairness and competition.

Personal names are shared by many people, and Canadian trademark law seeks to ensure that:

• Others with the same name are not unfairly restricted
• Common surnames remain available for legitimate use
• Trademark rights are not used to block personal identity

For this reason, surnames and personal names are treated differently from invented or arbitrary trademarks.

5. When can a surname or name still be registered?

A surname or personal name may still be registrable if the applicant can demonstrate that the mark has acquired distinctiveness in Canada.

This requires strong evidence that Canadian consumers recognize the name primarily as a brand, not merely as a personal name.

Typical evidence may include:

• Long and continuous use in Canada
• Significant sales and market share
• Advertising and promotional efforts
• Evidence of consumer recognition

This exception is applied narrowly and is often difficult to satisfy, particularly for common surnames.

6. How surnames are assessed in practice

When examining a surname-based mark, Canadian examiners may consider:

• How common the surname is in Canada
• Whether the name has any other meaning or significance
• The context in which the name is used
• Whether the mark includes additional distinctive elements

Marks that combine a surname with distinctive wording, design elements, or logos may face fewer issues than names used alone.

7. Practical implications for trademark applicants

Applicants considering a name-based trademark should be aware that:

• Surnames are inherently higher risk in Canada
• Common family names face greater scrutiny
• Evidence of acquired distinctiveness may be required
• Branding built around a personal name may limit expansion or enforcement

These risks should be evaluated early, before filing or investing heavily in branding.

8. Key takeaway

Under Section 12(1)(a), trademarks that are primarily merely the name or surname of a living individual—or one who died within the last 30 years—are generally not registrable in Canada.

While registration may still be possible with strong evidence of acquired distinctiveness, surnames and personal names carry inherent risk and require careful analysis before filing.

This article is for general informational purposes only and does not constitute legal advice.