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The Name Game: Differences between a Corporate Name, Business Name, Domain Name and Trademarks

Choosing a name for your business and building your own brand can be fun and exciting, but if you do not have the right information at the outset, your choices can have some serious legal consequences. The following sections explain the differences between corporate names, business names, trademarks and domain names, and the steps that you can take to minimize your legal risks when naming and branding your business.

Corporate Name

Your business's corporate name is the legal name of your corporation. This name must be used on all contracts, invoices, and orders for goods or services issued or made by your corporation.

A corporate name can be a numbered name or an actual word name.

You can choose to have a numbered name assigned by Corporations Canada if you are incorporating federally or by the Central Production and Verification Services Branch if you are incorporating in Ontario.

A corporate name can also be a word name, but the name must meet certain legal requirements. Generally, a corporate word name must be distinctive, must not cause confusion with other names or trademarks, and cannot include prohibited terms. Your proposed corporate name must be searched against existing names using the Newly Upgraded Automated Names Search (NUANS).

It is important to understand that choosing a corporate name does not automatically mean that you have chosen a trademark that is clear and available for use in Canada. It is also important to understand that even though you may receive government approval to use a specific corporate name, you are not guaranteed that others will not use it or something similar. There are also no guarantees that someone will not sue you for passing off or trademark infringement if they believe your name is confusingly similar to their name or trademark. See the section on trademarks, below, for more information.

Business Name

You may carry on business under a name other than your corporate name. You may choose to do so when you have a numbered company but want to use a more memorable or catchy name to do business day-to-day. If you carry on business under a name other than your corporate name, then you must register that business name in the province or territory in which you carry on business.

Before registering a name in Ontario, you will perform an Enhanced Business Name Search which allows you to determine if your proposed name is already registered with Ontario Ministry of Government Services by another company. As with a corporate name, registering your business name does not necessarily provide you with the right to use the name as a trademark nor does it provide infallible protection against the name's use by a third party nor will it guarantee that you will not be sued for passing off or trademark infringement.

Domain Name

A domain name is the name of your Web address. Before registering a domain name, you must first determine if it is available by conducting a search on the Canadian Internet Registration Authority (CIRA) website. If it is available, you must still determine if using that name would infringe a third party's trademark rights. Therefore, you will want to conduct trademark and other online searches as described in the Trademarks section of this article, below.

Trademarks

Trademarks are used for a different purpose than corporate or business names. A trademark is a mark that is used to distinguish the goods and services manufactured, sold, or offered by your company from those goods and services of another person or company. By contrast, corporate and business names are used to identify your business itself. You can theoretically have a different corporate name, business name and trademark. For example, your corporate name could be 1234567 Ontario Inc., your business name could be Bakery X, and your trademark could be Sweet Treats used in association with baked goods and bakery services.

Alternatively, you can have one corporate name that you also use as a trademark. For example, you can name your corporation Sweet Treats and use that same name as your trademark. However, as mentioned above, registering a corporate or business name does not automatically give you the right to use it as a trademark.

It is important to conduct some research before using a proposed trademark to ensure that you will not be sued by a current trademark owner. If you use a trademark that causes or is likely to cause confusion between your goods, services or business and the goods, services or business of another, you could be sued for passing-off under the Canadian Trademarks Act. Further, if you use a trademark that has already been registered by someone else, then you could be sued for trademark infringement. To decrease your chances of being sued, you can conduct a trademark search on the Canadian Intellectual Property Office (CIPO) website to determine if anyone else has registered the same or a similar mark in Canada. You can also do online searches to determine if your proposed trademark is being used by anyone else in Canada, regardless of whether it is registered. This may include searching the NUANS database.

If you plan on doing business in the U.S., you should conduct similar searches using the United States Patent and Trademark Office trademarks database.

To get the most protection for your proposed trademark, you can apply to register it with the Canadian Intellectual Property Office. Registering a trademark gives you nationwide protection and the exclusive right to use the trademark for the goods and services with which it is associated in Canada. As a registered trademark owner, you can prevent others from using the same or a confusingly similar trademark in Canada.