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IX. Protecting Your Corporate Name
The granting of a corporate name by the Director 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 the Director 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.
- 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 the Director 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.
- 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 are
confusing with that name. Information on registered and advertised trade-marks
can be obtained from the Trade-marks Journal distributed by the Canadian
Intellectual Property Office * 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.
- 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.
* Canada Communications Group
Publishing
Supply and Services Canada
45 Sacré-Coeur Blvd.
Hull, Quebec K1A 0S9
Telephone: 1-800-635-7943
Fax: 819-956-4800
** Trade-marks Office
Industry Canada
Phase I, Place du Portage
Hull, Quebec K1A 0C9
Telephone: 819-953-8098 re online databases
Telephone: 819-997-1420 re general enquiries
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