Below is an excerpt from
John McKeown's April 2018 Monthly IP
Blog.
Distinctiveness – Part II
Last month we discussed the basic elements relating to
distinctiveness. This month we discuss additional
elements.
Distinctiveness is Not Static
The distinctiveness of a trademark may change. An initially
non-distinctive mark may acquire distinctiveness and a registration
may be obtained. For example, a mark is not registrable if it is
primarily merely the name or the surname of an individual who is
living or has died within the preceding thirty years, or clearly
descriptive or deceptively misdescriptive of the character or
quality of the wares or services in association with which it is
used. However, a trademark which is not registrable because it
falls into one of these categories may be registrable if it has
been used in Canada by the applicant or its predecessor in title so
as to have become distinctive at the date of filing of an
application for registration.
