Annex C — Protecting Your Corporate Name

The granting of a corporate name under the Canada Business Corporations Act (CBCA) generally confers a degree of protection for that corporate name. However, the granting of names under the CBCA does not in itself confer any rights to those names vis-à-vis corporate names or trade names which may have existed at the time of granting but which did not appear on the NUANS® search report or which Corporations Canada did not, at the time of granting, consider likely to cause confusion. Similarly, the granting of a corporate name may not protect you from earlier or subsequent trade-marks of other parties.

The following gives a succinct overview of the relationship between trade name, corporate name and trade-mark rights and some general guidance as to how you can best protect your corporate name and the goodwill associated with it.

1. Before an applicant applies for a corporate name, it is important for him or her to ensure that there are no similar existing corporate names, trade names or trade-marks. A NUANS® search report, including trade-marks which are registered or proposed for registration, is required to be filed with articles of incorporation, amendment, etc. and is usually very reliable. Since, however, the NUANS® system is not fool-proof, the applicant remains responsible for any likelihood of confusion.

   While a name granted by Corporations Canada will appear on future NUANS® searches required for incorporation in the federal and most provincial jurisdictions, you may wish to conduct your own NUANS® searches on a periodic basis after your name has been approved. This would be done in order to ensure, to your own satisfaction, that no confusing corporate or business name has subsequently been approved in the jurisdiction(s) in which you are carrying on business, and to give you up to date information about trade-marks that have been applied for or registered subsequent to the granting of your corporate name.

2. Using a corporate name which is similar to a registered trade-mark may result in liability for infringement of the registered trade-mark even if the trade-mark was registered after the corporate name was granted. This is so because, under trade-marks law, the holder of a corporate name bears the responsibility of ensuring that no new trade-marks are registered which is confusing with that name. Information on registered and advertised trade-marks can be obtained from the Trade-marks Journal available at the Canadian Intellectual Property Office website (http://www.cipo.ic.gc.ca) or by conducting a search of one of the various electronic trade-mark databases. The holder of a corporate name has the right, in certain circumstances, to oppose the registration of a trade-mark or to have a trade-mark registration expunged.
3. Registration of a trade-mark is the best way to obtain the exclusive right to use the mark in all of Canada in association with the products and services for which the registration is obtained. While the Trade-marks Office can provide basic guidance, it is recommended that a specialist (a trade-mark agent or trade-mark lawyer) be consulted. It should be noted that trade-mark registration is not available for corporate names in all circumstances.

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