Two Toronto art dealers have successfully registered as their trademarks the names of a famous group of Toronto painters from the 1950s and are threatening to sue what they deem “any illegal commercial activity” associated with the trademarks.

To date at least two individuals – a writer preparing a book on the group and another private dealer in Toronto who has bought and sold works of the group – have received e-mails from the dealers indicating they are in violation of the trademarks “Painters Eleven” and “Painters 11,” the name given to a loosely organized collective of abstract painters, including such notables as Harold Town, Jack Bush and William Ronald, founded in 1953 and disbanded seven years later.

Indeed, it's Iris Nowell, the long-time partner of Harold Town (1924-1990), the prolific artist generally acknowledged as having named the group, who last week was told that her preparations for a book, Painters Eleven: The Wild Ones of Canadian Art, scheduled for publication next year, are in “express violation” of the trademarks. The holders, she was told, “will block by all legal means … the unauthorized use of our trademarks.”

The actions by Canadian Art Group, a partnership of veteran dealers John Shearer and his wife Lynda, have raised the ire of many in the Canadian art market – including heirs of the artists, representatives of their estates, other dealers, auctioneers and scholars – who believe the monikers “Painters Eleven” and “Painters 11” are descriptive, non-proprietary terms like those of the Fauvists, the Impressionists, the Automatistes and the Abstract Expressionists.

However, John Shearer disagreed in an interview yesterday. “I don't think it's in the public domain. If you were to go out on the sidewalk in front of The Globe and Mail and stop 100 people and ask who the Painters Eleven are, I don't think you'll get one person that will tell you. The Group of Seven, something like that, maybe, that's possible …” he said, but not Town and company.

The value of works by artists associated with Painters Eleven has grown in recent years. Last November, Heffel Fine Art Auction House sold, in Toronto, a large Ronald canvas called Drumbeat for $163,800 including buyer's premium – an auction record for the artist who died at 78 in 1998. (All Painters Eleven artists are now deceased. The others were Oscar Cahén, Jock Macdonald, Kazuo Nakamura, Alexandra Luke, Thomas Hodgson, Hortense Gordon, Ray Mead and Walt Yarwood.)

Lynda Shearer applied for trademark status in November, 2006, to the Canadian Intellectual Property Office and, after it was registered unchallenged by CIPO in May last year, the following was posted on CanadianArtGroup.com: “Painters Eleven is a division of CanadianArtGroup.com” and “Painters Eleven and Painters 11 are registered trademarks owned by Lynda M. Shearer.”

It's her husband's contention that “a lot of interest in the [Painters Eleven] artists, their history, was lost” after the association disbanded. Over the years, “we've spent a lot of money developing websites and marketing their work. To protect that, that's why we have a trademark.” Without going into detail, he argued: “There's a lot of [Painters Eleven] fakes on the market; there's a lot of people promoting artists, saying they belong to the group and they don't – and there's a lot of very odd pricing going on.”

Shearer wouldn't say if Canadian Art Group planned to enforce trademark by requiring, say, auction houses to include the TM symbol in their catalogues or to have magazines, newspapers, books and other media include trademark information. “I have to speak with our trademark enforcement lawyer to see what she has to say in the matter.”

Last Friday, David Silcox, one of three executors of the Harold Town estate, director of Sotheby's Canada and a former deputy minister of culture for Ontario, sent a letter to CIPO asking that it “rescind” the trademark designation granted the Shearers. “What [the Shearers] seem not to realize … is that they've given offence to a large number of people in the same business as they are, by gaining an edge that nobody else would have thought of doing … I just don't think you can appropriate [the name] to yourself or your business.”

Sotheby's, Silcox added, “uses the phrase ‘Painters Eleven' frequently because we deal with their work all the time, especially in the context of our catalogues, which of course is about the buying and selling of art.” But Sotheby's has not heard from the Shearers so far. “In fact, I'd be amazed if they try to enforce their trademark in the context of our auction sales. We'd have to fight that in court.”

Court may, in fact, be where the matter will be resolved. Individuals or associations opposed to trademark had two months, beginning in late January, 2008, to object formally to CIPO about the Shearers' initiative. According to Ottawa trademark lawyer Peter Cooke, opponents have only two methods of recourse: filing a suit in Federal Court or filing a counter-suit against Canadian Art Group if the group sues one or several of them for alleged “illegal commercial activity.”

While the Shearers may have been able to gain trademark registration, noted Cooke, “they may not realize that doesn't mean their mark is bulletproof, that their mark is valid,” as Painters Eleven has been in use, un-trademarked, for decades. If it gets to court, he suggested the Shearers would have to demonstrate their trademark is “distinctive … Nobody else has ever used it before in any context.”