“What’s in a name? That which we call a rose by any other name would smell as sweet.” Shakespeare.
Ah! If only that were true when it comes to business names. A business name can often make or break a business.
If you found us by doing a Google search you just experienced a great example of this; Google’s original working name was “Backrub” – would you have found us if you had to ‘Backrub’ us instead of ‘Googling’ us? I wonder.
And would “Pete’s Super Submarines” be the third largest franchise chain in the world with over 37,000 locations? Maybe; maybe not. But “let’s grab lunch at Subway” sure is easier to say.
Anyway . . . if you are starting a business, you may be wondering about obtaining and protecting your business name. There are a few choices: registered names of corporations, trade names, and registered trademarks. In this blog post, we will explain what these terms mean, how to get them, and how they apply to your business.
Registered names of corporations
A registered name of a corporation is the legal name that identifies the corporation. This name is set out in the articles of incorporation, which are the documents that create the corporation and define its structure and rules. A registered name of a corporation must be distinctive and not cause confusion with other names or trademarks. The name also cannot include prohibited terms, such as "Canada", "Parliament", or "Royal".
There are two ways to register a name of a corporation in Alberta: provincially or federally. If you register provincially, you have exclusive use of your corporate name in Alberta only. If you register federally, you have exclusive use of your corporate name across Canada. To register a name of a corporation, you need to submit a NUANS report, which is a search of existing corporate names, trade names and trademarks, to ensure that your proposed name is available and not too similar to others.
Some fun facts (and practical considerations) about Corporate names:
All corporations must have a distinct name (not identical or confusingly similar to another corporation);
If a name is similar, it would be allowed provided consent is given by the corporation that has priority ownership of the name. Note: the name cannot be identical though, even if the other corporation consents.
A corporate name typically contains three (3) elements:
Distinctive element. This is the fun part of the name and can be anything you want - like ‘Five Guys’
Descriptive element. This is the boring part of the name that describes the business – like ‘Joe’s Plumbing’ . Note that while “Joe’s” is not unique (or all that ‘distinctive’) it’s distinctiveness from other companies with ‘Joe in its name is helped by its unique descriptive element (i.e. if there are no other Joe’s in the industry and business of ‘Plumbing’);
Corporate element. This is the legal designation required by the Alberta Business Corporation Act and the Canada Business Corporation Act. You have 6 choices: Inc., Incorporated, Corp., Corporation, Ltd., or Limited. Thus you could have a name like Joe’s Plumbing Inc. or Joe’s Plumbing Ltd.
Trade names
A trade name is the name that a business uses to operate or market itself, which may be different from its legal name. For example, if your legal name is Smith Bakeries Inc., but you are marketing as Bob Smith's Bakery, then Bob Smith's Bakery is your trade name. A trade name is also known as an operating name or a business name.
If you want to use a trade name in Alberta, you need to register it with the provincial government. This will prevent other businesses from using the same or a similar trade name in Alberta. However, registering a trade name does not give you exclusive rights to use it across Canada or protect it from being used by others as a trademark; further, it may not significantly improve your legal standing vis a vis someone wanting to incorporate using the same or similar name in Alberta. To register a trade name in Alberta, you need to fill out a form and pay a fee. You do not need to submit a NUANS report for a trade name.
Registered trademarks
A registered trademark is a word, symbol, design, or combination of these that identifies the goods or services of one person or organization and distinguishes them from those of others. For example, Nike is a registered trademark for shoes and clothing. A registered trademark approved and filed in Canada gives you exclusive rights to use it across Canada for the goods or services that you have registered it for. It also protects your trademark from being used by others without your permission or in a way that could confuse consumers. It is the highest level of legal protection available - and thus the most expensive.
If you want to register a trademark in Canada, you need to apply to the Canadian Intellectual Property Office (CIPO), which is the federal agency that administers trademarks. You need to provide information about your trademark, such as its description, classification, and date of first use. You also need to pay a fee and submit a sample of how your trademark is used. CIPO will examine your application and conduct a search of existing trademarks to ensure that your trademark is registrable and not conflicting with others.
Summary
In summary, here are the main differences between registered names of corporations, trade names, and registered trademarks in Alberta:
Purpose:
A registered name of a corporation is the legal name that identifies the corporation and is often the only registered name the corporation (and business) needs.
A trade name is the name that an individual or corporate business uses to operate or market itself or a business division of itself, which may be different from its legal name.
A registered trademark is a word, symbol, design, or combination of these that identifies the goods or services of a person or organization (or corporation) and distinguishes them from those of others.
Legal Status:
A trade name gives you somewhat exclusive use of your trade name in Alberta only.
A registered name of a corporation gives you exclusive use of your corporate name in Alberta (provincially) or Canada (federally). This is a strong legislated legal right.
A registered trademark gives you exclusive rights to use your trademark across Canada for the goods or services that you have registered it for. This provides the strongest legal rights of the three.
Registration Requirements and Cost:
To register a trade name, you do not need to submit a NUANS report. This is the least expensive name protection.
To register a name of a corporation, you need to submit a NUANS report. The cost is somewhat minimal but obviously involves the cost to incorporate.
To register a trademark, you need to apply to CIPO. This is most expensive of the three.
Last thought:
You may also want to consider the availability and costs of obtaining a domain name that is similar to your Corporate name, trade name, or Trademark. These days, having a web presence with a URL that reflects the name you are marketing for your business is just as important as getting the more traditional names properly registered. You can search for names at sites such as godaddy.com and bluehost.com.
We hope this blog post has helped you understand the differences between these terms and how they apply to your business. If you have any questions or need assistance with registering your business name, trade name, or trademark, please contact us.
This is not meant to be, and should not be construed as, legal advice for your specific situation. You should contact one of our lawyers here at Richards + Company for further information and to discuss your particular facts and situation.
Darren L. Richards practices real estate and corporate/commercial law with Richards + Company in Edmonton, Alberta; depending on who you ask he is either ranked #1 or one of the ‘three best real estate lawyers’ in Edmonton.
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