Trade-Marks Examination Manual (page 45 of 55)
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IV.10 Subsection 12(2) — Distinctiveness
IV.10.1 General
A trade-mark which is not prima facie registrable under the provisions of paragraph 12(1)(a) or (b) may be registered if it has been used in Canada so as to have become distinctive at the date of filing of the application in Canada, pursuant to subsection 12(2).
An applicant may not claim the benefits of subsection 12(2) if the mark is objectionable under paragraph 12(1)(c), (d), (e), (f), (g) or (h).
A trade-mark becomes distinctive throughout Canada or in some provinces when it has come to be recognized by the Canadian public, not as the unregistrable word, but as a word which, when used in association with the wares or services applied for, serves to distinguish the wares or services of the applicant from those of others. The word is said to have acquired a secondary meaning with respect to the wares or services in that when the word is presented to the public, whatever primary meaning it may have is submerged, and only the trade-mark designation remains.
Proof of distinctiveness or secondary meaning must be filed by way of affidavit or statutory declaration meeting the requirements of subsection 32(1), and distinctiveness must be established at the date of filing of the application. Even words disclaimed pursuant to section 35 as unregistrable under 12(1)(a) and (b) may be the subject of a subsequent application if the disclaimed matter has become distinctive. Proof of distinctiveness must be offered as described in the following paragraphs.