Names Likely to Cause Confusion Are Not Acceptable

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• 3.1 Confusion is determined with reference to all circumstances
• 3.2 A corporate name is likely to cause confusion where its use may suggest that the business is related to a dissolved corporation
• 3.3 A corporate name is likely to cause confusion if it is similar to a trade-mark or official mark of an unrelated business
• 3.4 A corporate name is likely to cause confusion if it is similar to a trade-name of an unrelated business
• 3.5 Overcoming confusion
• 3.6 Not-for-profit corporations

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 or the CCA if it is likely to cause confusion with the other business name or trade-mark.

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. Confusion could arise based on phonetic similarity alone.

Your NUANS® report may reveal existing names similar to your proposed name. The following guidelines may help you to clarify your name choice, to modify your name choice to overcome confusion or to select another one.

(For information on how to protect your corporate name in Canada, please see Annex C.)

3.1 Confusion is determined with reference to all circumstances. (see Regulation 25)

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. Such details may show that there is no probability of confusion with an existing business name or trade-mark that looks or sounds similar to yours.

The Director may consider your proposed name not likely to cause confusion with an existing similar one if information you supply can demonstrate that one or more of the following circumstances applies:

• your trade-name has been in use for a significant period of time prior to the date of application for incorporation

• your goods or services differ from those of the existing business

• the nature of your trade or your means of offering or distributing your goods or services differs from those of the existing business

• your business is not likely to operate in the territory in Canada where the other business is likely to operate.

The pertinence of such details to your business should be made clear in your request. Any information regarding the circumstances of your name choice must be made to the Director in writing.

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3.2 A corporate name is likely to cause confusion where its use may suggest that the business is related to a dissolved corporation. (see Regulations 27 and 28)

Corporations dissolved less than two years previous to the making of a request for name approval are considered to be existing for purposes of confusion. Their names are not normally available for use by another business that is likely to cause 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 no successor companies were incorporated meanwhile and as long as the original name has not been perpetuated in any way, for example, through use by a successor corporation under regulation 30.

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3.3 A corporate name is likely to cause confusion if it is similar to a trade-mark or official mark of an unrelated business. (see Regulation 18(a))

3.3.1 A proposed name that appears to be likely to cause confusion with a recently registered trade-mark usually is not available. Nevertheless, if you can show that your proposed name has been used prior to the registration of the trade-mark, and therefore you would likely be able to have the trade-mark registration struck out and will try to do so, your proposed name will often be approved. However, 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.

The owner of a trade-mark that has been registered for less than five years, on the other hand, will not be granted a corporate name based on it if another confusing corporate name predates his/her trade-mark registration.

• e.g.
  Suncraft Motor Homes - existing corporate name
  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.

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3.3.2 Where a proposed name is likely to cause confusion with an existing official mark adopted and used pursuant to the provisions of section 9 of the Trade-marks Act, the proposed corporate name will be rejected.

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3.4 A corporate name is likely to cause confusion if it is similar to a trade-name of an unrelated business. (see Regulation 18(b))

A proposed corporate name may be considered likely to cause confusion with an existing similar trade-name. A likelihood of confusion exists even if they are owned by the same person, unless both names form part of the same business.

On the other hand, a proposed corporate name will not be considered likely to cause confusion with a trade-name if you can show that the businesses offer different goods or services, use different distribution means and/or operate in different geographical areas.

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 ½ years old and appearing on the NUANS® report, are active. Any registrations over 5 and ½ years old and not renewed, will be disregarded. The ½ year period is a grace period to allow time for renewal after expiry.

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3.5 Overcoming confusion

Your corporate name must not look, sound or suggest similar ideas as an existing business name. If your NUANS® report reveals that names similar to the one you have selected already exist, you may wish to modify your selection to overcome confusion.

A distinctive element made up of two letters or characters is likely to cause confusion with an existing trade-mark, official mark or trade-name in the same business if the initials are identical and in the same order or if the first initials are the same and the second initials are phonetically similar. A variation will often be acceptable.

• e.g.
  BN Construction - existing name
  BN Builders - likely to cause confusion
  BM Construction - likely to cause confusion
  BF Construction - acceptable

A distinctive element made up of three or more letters or characters is likely to cause confusion with a similar existing corporate name also. Here, too, a variation will often be acceptable.

• e.g.
  ABCD Construction - existing name
  ABCF Construction - likely to cause confusion
  DABC Construction - acceptable

Letters or figures that sound like other letters or words are likely to cause confusion.

• e.g.
  BNMD Construction - existing name
  BNND Construction - likely to cause confusion
  BMND Building - likely to cause confusion
  ANM Construction Ltd. - existing name
  A & M Construction Inc. - likely to cause confusion

The addition of initials only to a family name that is otherwise likely to cause confusion is not sufficient to overcome that confusion. A full given name plus a family name is often acceptable.

• e.g.
  Smith Shoes Inc. - existing name
  R. E. Smith Shoes Ltd. - likely to cause confusion
  Robert Smith Shoes Ltd. - acceptable

A distinguishing feature must be used to differentiate a new corporation from its provincial, federal or foreign affiliates. A general term may be used for this purpose among affiliated companies. For example, the use of general terms such as Canada, (Canada), canadian and international would be permissible. Alternatively, some other feature could be added to distinguish between parent and subsidiary, or between subsidiaries. A proposed Canadian subsidiary of a foreign parent with the identical name will not be required to add the word Canada if it can establish that the foreign company has never carried on business in Canada and is not known in Canada. (see section 4.6 for examples)

The name of a province or city with or without parentheses may be added to a corporate name to overcome confusion with the name of an existing affiliated corporation.

• e.g.
  Newton Tool Manitoba Ltd. - existing name
  Newton Tool (Canada) Ltd. - acceptable if related
  Newton Tool Québec Ltd. - acceptable if related

However, the consent of the existing corporation would be required in order to grant such a similar name. Where there are many existing affiliates, the consent of the geographically closest affiliate or the parent of the affiliates would be sufficient. Consent of a provincial authority may also be required. (see section 5.2.3)

Some common words are used as the distinctive element in many business names. Such wide usage dilutes the impact of the business name, allowing it to be easily borrowed by other businesses with only slight modification. A different descriptive term is all that is needed to distinguish one corporate name from others that sound similar, even if the descriptive words describe essentially the same business.

• diluted
  Universal Food Enterprises Inc. - existing name
  Universal Products Inc. - acceptable proposed name
  Universal Bakery Products Inc. - acceptable proposed name

A name that includes a more specific personal or geographical name or coined word is less diluted in impact and more distinctive, deserving more protection. Such a name would require a descriptive term relating to a different business to distinguish it from others that sound similar.

• less diluted/more distinctive
  Suncrest Food Enterprises Inc. - existing name
  Suncrest Products Inc. - proposed name likely to cause confusion, unless evidence is provided in writing to show that the nature of the businesses is different
  Suncrest Toys Inc. - acceptable proposed name

Note that no descriptive term at all may be required, if you submit information regarding your likely business activity to the Director with your name request and that business activity is different from that of the existing business.

A unique and imaginative distinctive element in the name of a corporation is more likely to become associated in the public mind with a particular business, and it therefore deserves more protection in order to prevent confusion. In such circumstances, your name may not be accepted, even if it is in a different business from the existing one.

• e.g.
  Greenlips Marketing Inc. - existing name
  Greenlips Computer Services Inc. - unacceptable proposed name, because the public could think the new business is related in some way to the existing one

Some of the above names deemed likely to cause confusion or unacceptable could become acceptable if the companies were related and if consent were provided. (see section 4.2)

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3.6 Not-for-profit corporations

Not-for-profit corporations are subject to the same regulations as for-profit corporations. However, they may receive a slightly more liberal interpretation in name granting with regard to lack of distinctiveness, because not-for-profit names are typically very general and descriptive.

• e.g.
  Canadian Manufacturers' Association

If your proposed name is for a not-for-profit corporation and is similar to that of an existing not-for-profit corporation except for a geographical term, you should submit the consent in writing of the existing corporation.

• e.g.
  Calgary Ultralight Aircraft Association - existing name
  Canada Ultralight Aircraft Association - acceptable only with consent
  Toronto Dance Foundation - existing name
  Canada Dance Foundation - acceptable only with consent

A possible alternative is to modify another word.

• e.g.
  Calgary Ultralight Aircraft Association - existing name
  Canada Ultralight Aircraft Society - acceptable without consent
  Toronto Dance Foundation - existing name
  Canada Dance Funding Society - acceptable without consent

Terms such as institute, association and foundation are usually reserved for use by not-for-profit corporations. If you have a strong case for using such a term in the name of a profit-making corporation, you may apply to the Director for a decision, giving your reason in writing.

The term Chamber of Commerce is acceptable in the name of a not-for-profit corporation. However, the geographical descriptor must not be a district within Canada alone, but Canada and another nation.

• e.g.
  Canada-Brazil Chamber of Commerce

The term club may be used by profit or not-for-profit corporations. However, the word may not acceptable where the name suggests a not-for-profit membership corporation.

• e.g.
  Toronto Blue Jays - acceptable, because the general public would be
  Baseball Club - aware that such a baseball club is a business corporation

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