This is applicable if the use of the trademark is a disadvantage to the bearer of the name and if it does not clearly refer to someone long since deceased.
The purpose of this provision is that the protection for surnames in the Trademarks Act does not extend beyond the protection according to the Names Act.
Does someone else have the surname?
For a distinctive surname to be the reason a trademark cannot be registered it has to be borne by someone else than the applicant.
The Names Act does not only protect identical names: a trademark must not be confusingly similar to a distinctive surname. For example, The Supreme Court have ruled that Gullmarsstrand is confusingly similar to Gullmarstrand and Vänerskog is confusingly similar to Wänerskog.
A surname used in Sweden has to be distinctive to be protected and the distinctiveness should be interpreted the same was as in the Names Act: a surname is distinctive if it indicates association to a certain family. However, the requirements for a distinctive surname has not yet been confirmed in practice.
Whether a name is distinctive or not is not only dependent on how many bearers the name has. A surname with many bearers may be distinctive, for example if it is associated with only a few families. If the surname is always associated with a particular family it is considered distinctive.
A disadvantage to the bearer
A registration of the trademark has to be a disadvantage to the bearer of the distinctive surname. Otherwise it is not a reason to not register the trademark. It is not enough reason to not want your name as someone else’s trademark.
In most cases PRV cannot determine if the use of the trademark would be a disadvantage to the bearer of the name. Therefore, the bearer must oppose to the registration and state the reasons the trademark is disadvantage to them personally.
There are cases where PRV has been able to assess whether the name being registered as a trademark would be a disadvantage to the bearer. We can for instance refuse an application with regards to a distinctive surname if the trademark in itself, or the goods and services in the application, is something that would apparently be offensive to be associated with.
It may also be a disadvantage if a trademark contains a well-known person’s distinctive surname and the intended use is related to the goods or services the person is well-known for.