A company name is either its corporate name or its trade name.
Trade Names and DBA
A corporation may choose to register a trade name as a division of their corporation. A trade name is a DBA (doing business as) name and it is also referred to as an o/a (Operating As) name. Often corporations will be registered as a numbered corporation and use one or more trade names. A corporation with a name may also use a trade name.
A trade name registered by a corporation should be always used in conjunction with the corporate name on all invoices, contracts, and purchase orders to give notice to others that they are dealing with a corporation and not a sole-proprietor or a partnership. An example of a proper usage is Michaels Inc. o/a Michaels Business Services. Another example is The Hudson Bay Company o/a The Bay.
An individual or a partnership typically register their business name as a trade name.
Trade name registrations last 5 years and they must be renewed every 5 years. There is usually a 6 month grace period before the trade name is permanently cancelled. If you fail to renew your trade name before it is cancelled, you will have to re-register the trade name as a new trade name.
Order a Nuans pre-search report or an Ontario Nuans report before registering your trade name.
Picking company names can be difficult. Good company names enable businesses to be successful in the long term.
Guidelines for Picking Good Company Names
- Pick a company name that is unique.
- Pick a distinctive name that is brandable.
- Pick a name that is easy to spell. Try to only use words that are spelled properly in English or French, unless it is an ethnically targeted business.
- Pick a short name, and preferably one with less than 4 words. i.e.: Trademark Pro
Pick Unique Company Names
Corporations Canada does not permit someone to pick a name for a federal corporation that is confusingly similar to an existing trademark or trade name registered anywhere in Canada, without the existing trademark or trade name owner’s consent. Corporations Canada’s test for what is confusingly similar is different from the test provided under the Trade-Marks Act.
When Corporations Canada refuses a proposed company name, incorporators often switch to registering their desired company name under the laws of a province where they operate, because the provinces are less strict in their tests for registering confusing names.
In Ontario, like most other provinces, the Business Names Act requires company names to be both unique and not deceptively similar to an existing registered name in Ontario, or as a person’s name, without their consent.
If the business will be an operating company:
- Pick a company name where the first word or two is available as a domain name, i.e.: trademarkpro.ca
- A company name, less any legal ending, is essentially a trade name.
- Pick a company name that is not confusingly similar to any trademark or the trade name of any business operating in a similar line of business.
Review the trademark listings in the last two pages of a Nuans report of your proposed corporate name for conflicts. If your business will compete with any of the trademark registrants, be prepared for a trademark infringement suit. Trademark infringement suits may be brought in either the Federal Court of Canada or the Superior Court of your province.
In a recent case, Western Driving Academy of London Inc. sued Western City Driving School Inc. in the Federal Court of Canada for trademark infringement of its Western Driving Academy trademark. Both driving schools operate in London Ontario, the home of Western University and the only common word is Western.
The Trade-marks Act provides the following factors to consider when deciding a name is confusingly similar to any trademark or trade name.
When mark or name confusing
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6 (1) For the purposes of this Act, a trade-mark or trade-name is confusing with another trade-mark or trade-name if the use of the first mentioned trade-mark or trade-name would cause confusion with the last mentioned trade-mark or trade-name in the manner and circumstances described in this section.
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(2) The use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the goods or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class.
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(3) The use of a trade-mark causes confusion with a trade-name if the use of both the trade-mark and trade-name in the same area would be likely to lead to the inference that the goods or services associated with the trade-mark and those associated with the business carried on under the trade-name are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class.
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(4) The use of a trade-name causes confusion with a trade-mark if the use of both the trade-name and trade-mark in the same area would be likely to lead to the inference that the goods or services associated with the business carried on under the trade-name and those associated with the trade-mark are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class.
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What to be considered
(5) In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including
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(a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known;
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(b) the length of time the trade-marks or trade-names have been in use;
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(e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them.
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- R.S., 1985, c. T-13, s. 6;
- 2014, c. 32, s. 53.
Business Names Act, R.S.O. 1990, c. B.17
Liability for damages
6. (1) A person is entitled to recover compensation from a registrant for damages the person suffered by reason of the registration by the registrant of a name that is the same as or deceptively similar to,
(a) a name registered by the person; or
(b) the person’s name, even though the person is not required to register that name under this Act. 2010, c. 16, Sched. 5, s. 2 (1).
Same
(2) The compensation under each of clauses (1) (a) and (b) is limited to the greater of $500 and the actual amount of damages incurred. 2010, c. 16, Sched. 5, s. 2 (2).
Cancelling registration
(3) In giving a judgment for a plaintiff in an action brought under subsection (1), the court shall order the Registrar to cancel the registration that was the cause of the action. R.S.O. 1990, c. B.17, s. 6 (3).
What is a Trademark?
