You've just discovered the joys of roller derby. So, what are the chances of registering a track name such as Cindy Lop-Her? Not so good if the examiner considers that such matter may falsely suggest a connection with any living individual.
The Section of the Trade-Marks Act dealing with this prohibition is S 9(1)(k) and is intended to prevent the commercial exploitation of another's name or likeness without their permission. Given the broad interpretation of this paragraph, objectionable matter is not limited to corruption of names such as in the Greatski case, but also encompasses any details such as a nickname, caricature, original element of clothing or some other characteristic which the public associates with the living individual and which cannot be registered as a trade mark if it falsely suggests a connection with that individual, as in the Here's Johnny case.
An association must be perceived between the living individual and the mark applied for, so logically, evidence of a significant fame and/or notoriety in Canada should be proven for a mark to be prohibited. However, it is not unusual to receive an initial objection based merely on the existence of any individual that may be located via internet research. The fact that an individual may have achieved some local or regional notoriety should not by natural extension render the individual famous or well known in Canada. While fans had heard the signature phrase Boogity Boogity Boogity by a famous race car driver and sports announcer, evidence failed to show that a significant number of Canadians would associate the phrase with the announcer or even be familiar with the individual by name.
So, in the absence of the provision of consent from Cindy Lauper, her rolling skating alter ego Cindy Lop-Her may be left spinning her wheels at the Trade-Marks Office.
 |
| Jill Terris |
Marks & Clerk Canada
PO Box 957, Station B
Ottawa ON K1P 1C2
Canada
Tel: +1 613 236 9561
Fax: +1 613 230 8821
info@marks-clerk.ca
www.marks-clerk.ca