Many of the most well known and valuable brands stem from personal names, including Celine Dion, Taylor Swift and Terry Fox, which have all registered their names as a trademark in Canada. However, protecting a brand that is a word or words that are primarily the name or surname of an individual who is living or who has died, within the preceding thirty years, can prove to be difficult in Canada.

Trademark registration is the best way to protect your brand. It will provide you protection in relation to your products and services associated with your trademark in Canada. It also provides you enhanced rights to prevent the use by your competitors of trademarks that are confusingly similar.

In Canada, the Trademarks Act, R.S.C., 1985, c. T-13, (the “Act”) provides a method to overcome an objection for registering a trademark that is “primarily merely the name or surname of an individual who is living or who has died within the preceding thirty years.” Section 12(3) of the Act requires the applicant to furnish evidence to show that the name has been used in Canada as a trademark so as to have become distinctive as of the date of filing the application — that is, that your name has become renowned and your products and/or services are well known in relation to your name. Evidence considered will have regard to the circumstances of the use of your trademark from the date of first use to the time of filing the application, including:

• the length of time during which your name has been used in association with the products and services;
• explanation on the manner of use of your name as a trademark in the advertisement of your products and services, including dollar volumes and types of advertising;
• extent of use of your name as a trademark, which may include units, price per unit, dollar volume of sales, percentage of market for products or services sold, leased, or hired in association with the trademark; and
• details as to publicity and media references in relation to the trademark.

However, even if you are able to provide enough evidence to meet subsection 12(3), you need to ensure you have been using your name as a “trademark.” The Act defines a trademark as, inter alia, a “sign or combination of signs that is used or, proposed to be used, by a person for the purpose of distinguishing or so as to distinguish their goods or services from those of others.” This means that a name may not be considered to be used as a trademark if the name has not been consistently used and/or does not stand out from surrounding text so it is distinguishable, thus, it is important to ensure use of your name is used as a trademark.

Alternatively, if you are not prepared to, or cannot provide the evidence required by the Act to allow registration of solely your name as a trademark, you may consider a workaround. An option would be to consider adding to your name a design or unique, coined, or arbitrary words to create a distinctive trademark that is not solely your name.

So, yes, you can own your personal name as a brand for your business. But to obtain registration of a trademark you will need to be prepared to provide substantial evidence to prove your name has sufficient reputation and goodwill in association with your products and services, so to distinguish your products and services from those of others.