The basis significant to registration of surnames Prima facie, a surname is not adapted to see the goods of one person from those of other persons bearing the same surname. It is, however, possible to register a surname upon proof of its distinctiveness. An application for registration of a surname ought to be most closely scrutinized, and the acceptance of it obtained only where its distinctive character is quite clearly established.
In dealing with an application to register a surname which is alleged to have become distinctive by user, the following factors should be taken into consideration.
(1) The extent to which the actual user down to the date of the application has, in fact, rendered the trademark distinctive of the applicant’s goods.
(2) The probability, or the reverse, of this degree of distinctiveness being maintained in the future.
(3) The trademark name, that is to say : Is it a very unusual name, or an unusual one, or one in common use ?
(4) The trade or manufacture in which the name is employed. Is it one restricted to a comparatively small class of the community or is it one in which a large number of individuals are likely to embark? Is it one in which the employment of a surname is at all common ?
(5) The class of goods of which the trademark is distinctive, and the way in which it is used in connection with them. Are they goods in which the trademark is a prominent feature ?
(6) Are there any circumstances calculated to induce the belief that the present distinctiveness is due to temporary or exceptional causes such, for example, as the existence of current patents or of contracts restricting competition by other members of the family ?
(7) The extent to which registration will control the freedom of individuals of the same surname who may in future embark on the manufacture of the same goods.
(8) Will registration tend to protect the public from imposition or reverse ?
(9) Where the word in addition to being a surname or personal name has also a descriptive meaning, this fact should also be taken into consideration.
(10) The approach appropriate to be applied to the field of geographical names is also appropriate to the field of surnames.
Secondary meaning grows out of long association of the name with the business, and thereby becomes the names of the business as such, as acquired when the name and the business become synonymous in the public mind and submerge the primary meaning of the name as a word identifying a person, in favor of its meaning as a word identifying that business.
Personal names becoming generic
Personal names used as trademark may in course of time become generic names of the goods and belongs to the public domain. Examples are SINGER Sewing machines, WEBSTER for dictionaries.
Names of famous historical persons may cease to have a personal name signification and become inherently distinctive marks. Examples ; Julius Caesar for cigarettes, LISTERINE for mouth wash originally names of famous historical persons being used as distinctive marks.
The personal name of a performer can be registered as service marks as identifying the entertainment services performed by that person. It should however satisfy the test of distinctiveness. The name of a musical performing group can also be registered as a service mark.
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