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Trademark infringements can happen in an instant. Not knowing whether a product has been trademarked, can cost a small business owner dearly if they refer to it, use it on one of their advertisements without a prior agreement or use a similar mark to identify their products which cause confusion with the public.
Often misunderstood, trademarks can apply to surnames under special circumstances. You cannot however, get a surname trademarked in general.
The reason is simple. By trademark registering a surname, you will exclude all others with the same surname from using such.
To apply a trademark to a surname without causing permanent trademark infringements by the holders of such a surname, you will have to apply the trademark to a specific product in one of the many trademark classes there exist.
Only used for the specific product, it will be allowed if secondary meaning can be ascribed to it.
You will thus have to give evidence that the name is not used for a surname, but to refer to a company or product. This can be a complicated process indeed. If the mark is a common surname, appears as a surname, and if there are no alternative definitions for the surname, it may still be rejected.
As such, if the surname will be crucial in the branding process, you may want to proceed with the application. It may still be rejected on the above grounds.
As a rule of thumb, it would be better not to apply for such a trademark, but rather use a unique word that will not cause trademark infringements by other parties without purpose.
Contact us at Smit & Van Wyk to help you register a trademark and to take steps against to protect against trademark infringements.
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