Distinctiveness of a trademark

A brand buyer asking whether a mark can be enforced meets this concept. The Act defines distinctive in relation to a trademark, and the Canadian Intellectual Property Office describes a trademark as a sign or combination of signs used to distinguish goods or services from those of others.

Where it comes up

Under section 12, a word that is primarily merely the name or surname of an individual who is living or has died within the preceding thirty years, or a mark that is clearly descriptive or deceptively misdescriptive, is not registrable on that ground, but it becomes registrable if it is distinctive at the filing date, having regard to all the circumstances including the length of time it has been used. Section 18(1)(b) makes a registration invalid if the mark is not distinctive when proceedings are commenced.

What to check

• Whether the mark is a name or a descriptive word, which the Act treats differently
• Whether anyone else uses the mark or a similar one for similar goods or services
• What evidence the owner holds of how the mark identifies one source

See searching the trademark and IP registers before buying a brand and confusing trademarks.