Corporate Name Protection vs. Registered Trademarks
Is my corporate name protected once the corporation is registered?
For provincial corporations, registering a corporate name provides limited protection for that name within the province in which the corporation is registered. Others are typically prevented from registering the same, or a similar name within that province, but not any other provinces. This means that you can have multiple corporations with the same name (but different owners) in different provinces.
For federal corporations, registering a corporate name provides greater protection. Others are restricted from registering the same or a similar name to an existing federal corporation across Canada, not just in a single province. For some, this added name protection justifies registration of a federal corporation over a provincial corporation, however, as will be discussed below, if name protection is important, it is generally better to apply for a registered trademark.
Limitations on Corporate Name Protection
Rules vary by jurisdiction, however, the policing of similar names is usually left up to the person seeking to register the name. In other words, the applicant gets to decide whether the name they want to register is “similar” to a name already in use. As you can imagine, this can lead to similar names being registered despite the restrictions, as some people find it difficult to come up with something new after they’ve settled on a corporate name and are fine with the risk that they may have to change it down the road.
Another limitation with respect to protection provided by corporate name registration has to do with enforcement. If a corporation believes that an identical or similar name has been registered that should not have been, the corporation is left to seeking recourse from the applicable corporate registry, essentially requesting that they force the other person to change their corporate name. Depending on the circumstances, the corporation may also be able to sue for something called “passing off”, however, this can be difficult and expensive to do, and is unlikely to be successful unless the owners of the new corporation have clearly adopted the new name in order to take advantage of the goodwill generated by the existing business.
Benefits of applying for a registered trademark
If you’re brand is important to you, we recommend applying for a trademark for your corporate name. Here are a few of the benefits a registered trademark can provide:
- a registered trademark provides protection across Canada, no matter where your corporation is registered;
- a registered trademark protects against the registration of identical and confusingly similar names, but also against use of the same or a confusingly similar name. In other words, the protection is not limited to preventing registration, but also any other commercial use;
- a registered trademark provides for the ability to sue for trademark infringement as well as passing off. This can make it easier to prevent unauthorized use and obtain damages from infringers;
- a registered trademark can provide advantages in disputes over domain names.
A registered trademark can also be obtained for things such as slogans and logos, however, most corporations seek protection for their corporate name first, as it’s often the most important to their business.
Our incorporation packages include the provision of legal advice which can be used (if clients wish) for the purposes of conducting trademark due diligence and analysis or providing advice on corporate name protection.
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