Protecting the Name You Trade Under

Three different things that get confused

Business name registration. A provincial filing recording that you operate under a name. It makes the use lawful and lets you open a bank account under it. It does not give exclusive rights and it applies only in that province. Some provinces permit duplicate trade names outright.

Incorporation. Creates the company and includes a name check. Federal incorporation applies a stricter national name-granting policy than provincial, and a corporate name is still not a trademark. A corporation must also register in each province where it carries on business.

Trademark registration. A federal filing through the Canadian Intellectual Property Office granting exclusive rights across Canada to use the mark in connection with the goods and services you registered it for.

Only the third gives you something you can enforce against somebody else nationally.

The situation this produces

Worth stating plainly because it is where businesses get hurt.

You can register a name provincially, trade under it for years, build a reputation, and then receive a demand from a trademark owner to stop using it.

Provincial registration is not a defence. The trademark owner's rights are national and the fact that a registry accepted your filing does not create rights against them.

Which is why searching the trademark database before committing to a name matters more than the provincial availability check most people rely on.

Rights you have without registering

Common law protection exists in Canada from actually using a mark, and it is narrower than most owners assume.

It is limited to the geographic area and the market where you have established an actual reputation. A business trading in one region has rights in that region and not beyond it.

Enforcing common law rights is also harder and more expensive than enforcing a registration, since you have to prove the reputation existed rather than pointing at a certificate.

For a purely local business those rights may be adequate. For anybody expanding, selling online, or operating in more than one region, they are thin.

What can and cannot be registered

The practical filter, and it eliminates many names.

Distinctive names register most easily: invented words, or ordinary words with no connection to what you sell.

Suggestive names, hinting at the service without describing it, are registrable with more care.

Descriptive and generic names are extremely difficult. A name that plainly describes the service or the place, of the kind most small businesses choose, is frequently unregistrable because it is the language competitors need to describe themselves.

Which is an argument, at the naming stage, for something distinctive rather than descriptive, since a descriptive name cannot be protected and is also harder to distinguish in search.

The process, in outline

1. Search first, including the trademark database, corporate registries, and ordinary search.
2. File the application, specifying the goods and services it covers.
3. Examination, where objections may be raised.
4. Advertisement in the official journal.
5. Opposition period, during which somebody may object.
6. Registration, if it clears.

It takes many months and frequently more than a year, with the timeline depending on the queue and on whether objections arise. Current expectations are worth checking with the office rather than assuming.

Registrations run for a fixed term, currently ten years for registrations and renewals made since the 2019 amendments, and can be renewed indefinitely.

Whether it is worth it

An honest assessment rather than a recommendation.

Worth considering: if the name is distinctive and central to the business, if you operate in more than one region or sell online, if you are investing significantly in the name, if you might franchise or sell the business, or if a competitor with a similar name has appeared.

Less compelling: a purely local business with a descriptive name that could not be registered anyway, or a business where the owner's personal reputation rather than the trade name is the asset.

The cost includes government fees and, for most applicants, an agent, since the description of goods and services is where applications go wrong and fixing it later is expensive.

The practical steps regardless

Things worth doing whether or not you register.

Search the trademark database before adopting a name, which is free and prevents the worst outcome.

Keep evidence of when you started using the name and where, since common law rights depend on demonstrating use.

Register the matching domain and the obvious social handles at the same time, since a name you cannot use online is a different problem with the same effect.

Use the name consistently, since inconsistent use weakens whatever rights you have.

This is general information rather than legal advice, the rules and timelines change, and the intellectual property office or a registered trademark agent is the right source for your own position. The related question of securing the matching domain is covered in buying a domain somebody else already owns.

Frequently asked questions

West Coast Media Solutions Inc. provides web design, web development, hosting, digital marketing, and business consulting to organisations across Canada, drawing on more than twenty-five years in the field.