Names Likely to Cause Confusion Are Not Acceptable

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Confusion is determined after considering certain factors

The information which follows can be found in more detail in Corporations Canada name policy, called the Name Granting Guidelines, available under the Choosing a Name section of this website. Since an electronic consent filing mechanism is still under development, any affidavit or consents sugged to be filed below should be filed by fax to number 613-941-5722 making specific reference to the proposed name and the corporate number if one already exists. Any information requested below can be entered on the Corporate Name Information Form provided by the electronic filing system. Please note that if you are filing a consent or affidavit by fax, it is important to use a Corporate Name Information Form and include a statement in it saying that a consent or affidavit was filed by fax on a certain day. In this way, your fax filing and your electronic filing can be tied together.

A proposed name that looks, sounds or suggests similar ideas as an existing business name or trade mark is not eligible for incorporation under the CBCA if it is likely to cause confusion with the other business name or trade mark. The Act gives the Director, CBCA the responsibility to decide whether your proposed name is likely to cause confusion.

Likely to cause confusion refers to the probability that a similarity between two names could lead the public to believe they are one business, or related businesses, when they are not. The regulations require the Director to look at certain information when deciding whether your name is likely to cause confusion or not.

If the NUANS® search report which you have created reveals existing names similar to your proposed name, you should be sure to provide the following information to the Director with your request for name approval. You may use the Corporate Name Information Form which can be downloaded for this purpose. Consents referred to below should also be filed. Without such information there is a good chance that your name request may be rejected because the Director will not be able to make a decision.

Your request for approval of a name should include details on the nature of your line of business, your clientele, your means of distribution, the derivation of your name, whether and how long you have already carried on business, and your territory of operation.

To the extent possible, you should provide the same information about the existing similarly named businesses and trade-marks appearing on the NUANS® report {Regulation 25}.

Having this kind of information about both your proposed business and any existing similarly named businesses will permit the Director to evaluate the likelihood of confusion between them.

3.1 Your corporate name is likely to cause confusion where its use will suggest that your business is, or is related to, an existing corporation.

After considering all the facts which the regulations require him to consider, the Director will reject a proposed corporate name that is likely to be confusing in the sense that it appears to be the name of a corporation that is already existing, or that it appears to be related to a corporation that is already existing. (Remember that if the information that you have provided relating to the existing corporation(s) and the proposed corporation shows significant differences, the Director may be able to conclude that there is not a likelihood of confusion between corporations with names as similar as ABC Inc. and ABC Ltd.)

Possible Methods provided by the Regulations for overcoming a rejection for Likelihood of Confusion with an existing corporation.

File the consent of the existing business with whom the proposed corporation will appear to be related. There can be no confusion if the businesses are, in fact, related. (Reg 29)

If you want the same name as existing corporation which has been inactive for two or more years, file the consent of the existing corporation, referring to its two years of inactivity, and undertaking to dissolve immediately or change its name before your corporation begins to use the proposed name. (Reg 28)

If you want the same name as an existing affiliated corporation and substantially all the property of the existing corporation has, or is about to transfer to the proposed corporation, file the consent of the existing corporation, referring to its affiliation and the transfer of property, and undertaking to dissolve or change its name before your corporation begins using the proposed corporate name.(Reg 31)

If you want the same name as any other existing corporation and you are willing to insert the year of incorporation in brackets before the legal element of your proposed name, file a consent of the existing corporation with its undertaking to dissolve or change its name before your corporation begins using the proposed corporate name.(Reg 30)

The regulations do not provide any other mechanism to get the name of an existing corporation. Remember, however, that you may not need any of these consents if the information that you file with your proposed name indicates significant differences in type of business, clientele, territory etc between the proposed and existing names.

3.2 Your corporate name is likely to cause confusion where its use will suggest that your business is, or is related to, a dissolved corporation.

• {see Regulation 27}
  Corporations which would be likely to cause confusion and which were dissolved less than two years previous to the making of a request for name approval are considered to be existing for purposes of determining likelihood of confusion. Their names are not normally available for use by another business that has been determined to cause a likelihood of confusion until a two-year period has lapsed. The purpose of such a period of non-use is to allow the public time to dissociate that name from a specific business. After two years, the name becomes available to anyone as long as nothing else confusing has been incorporated or registered by the provinces or the Trade Marks Office in the meantime.

3.3 Your corporate name is likely to cause confusion where its use will suggest that your corporation is related to a trade mark of an unrelated business.

• {see Regulation 18}
  A proposed name that appears to be likely to cause confusion with someone else's recently registered trade mark usually is not available. Nevertheless, if you can show that your proposed name was used prior to the registration of the trade mark, and that therefore you would likely be able to have the trade mark registration struck out and you will try to do so, your proposed name will often be approved.

  Note however, that once a trade mark has been registered for five years, it is very difficult to have it struck out. In such circumstances, your proposed name would not be approved.

  Conversely, the owner of a trade mark that has been registered for less than five years, will not be granted a corporate name based on the trademark if another confusing corporate name appearing on the search report predates his/her trade mark registration because it is assumed that the existing corporation will move to have the trade mark struck out.

• e.g.
  Suncraft Motor Homes -- existing corporate name, existing for more than 5 years
  Suncraft -- trade mark registered by a different business dealing in the same goods
  Suncraft Travel Machines -- unacceptable confusing corporate name requested by the owner of the trade mark

However, if the trade mark has been registered for five years or more, the owner of the trade mark will be given the name because this trade mark is not likely to be struck out.

Note: Confusion with Official Marks: Where a proposed name is likely to cause confusion with an existing official mark adopted and used by a public authority pursuant to the provisions of section 9 of the Trade-marks Act, it will be rejected regardless of who might have had first use.

Possible methods provided by the regulations for overcoming a rejection for likelihood of confusion

If the proposed corporation will be related to the owner of the trade mark, file the consent of the trade mark owner to your incorporation in the proposed name. Note: a consent to your using the word(s) in question is not enough.

3.4 Your corporate name is likely to cause confusion where its use will suggest that your corporation is related to the unincorporated trade name owned by yourself or by an unrelated business.

• {see Regulation 18}
  A proposed corporate name may be considered likely to cause confusion with an existing similar unincorporated trade name. A likelihood of confusion may exist even if they are owned by the same person.
  
  Note re: Ontario Business Names on the NUANS® report: Ontario Business Names expire after 5 years unless they are renewed. Unrenewed registrations remain on the database however. The Director will assume that all Ontario trade name registrations less than 5 and 1/2 years old and appearing on the NUANS® report, are active. Any registrations over 5 and 1/2 years old and not renewed, will be disregarded.( The 1/2 year period is a grace period to allow time for renewal after expiry.)

Possible Methods for overcoming a Likelihood of Confusion.

• If you own the trade name registration, file your undertaking to transfer it to the proposed corporation once it is incorporated.
• Provide evidence that the trade name registration has expired without renewal.

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