Many small business owners make the mistake of believing they “own” their business name because they’ve registered it on a provincial business name registry.
Just this past week, we had another case where an individual was using our client’s trademark as his business name, and when we demanded that he stop his response was “I’ve registered this name as my business name. I own it.”
A business name registration does not give you ownership of your name. The registration doesn’t even give you the right to use the name or to stop others from using something similar.
The main purpose of a business name registration is as a directory listing so that the government and the public can find out the names of the individuals operating a business and where they can be reached. Business name registrations are necessary for individuals, partnerships and corporations who are carrying on business in a name other than their own.
For example, Jane Smith who is operating a hair salon in Ottawa under the name “The Beehive” must register it as a business name with the Ontario government. Similarly, a corporation with one legal name operating their business under a different legal name must register that name with the government.
That’s really it. A business name registration does not grant you ownership of the name, or even the right to use it in connection with your business.
If you are operating your business without a trademark registration for your name, get started today with a Markably trademark registration.
Most importantly, a business name registration won’t protect you when there is a dispute over your name.
Business name registrations are at the mercy of,
earlier Canadian trademark registrations,
earlier filed Canadian trademark applications, and
earlier unregistered trademarks in your area.
If you ran a NUANS search prior to registering your business name, you may have noticed there were registered and pending trademarks listed in the results. Most provincial registries will not allow you to register a business name that is the same as a registered or pending trademark. In fact, this preventative function is one of the main benefits of filing a trademark application.
A Canadian trademark registration for your name will grant you the exclusive right to use the name throughout Canada. For example, if a Toronto restaurant owner registers his restaurant name as a Canadian trademark, he can stop anyone from using that name in connection with a restaurant anywhere else in Canada. If he only registers the name as an Ontario business name, he can do nothing about it being used in Nova Scotia, Alberta, or anywhere outside of Toronto.
Business name registrations also won’t protect you in the event that your name causes confusion with an unregistered trademark in use in your geographical area.
Unregistered trademarks are names, logos and taglines that businesses use in connection with the sale of goods and services, but they haven’t taken any steps to register them as trademarks with the Canadian government. If you are operating a business in Canada and have not registered your name with the Canadian Intellectual Property Office, you are in fact using it as an unregistered trademark.
Unfortunately, there are many businesses operating in Canada using unregistered trademarks. Under Canadian law, you are not required to register a trademark to use it or to have legal rights to stop others from causing confusion. Owners of unregistered trademarks do have limited legal rights, including the right to prevent someone from registering a confusing trademark and the right to stop someone else from using a business name in a manner that causes confusion in your same geographical area.
As a new business owner, it is your responsibility to ensure that your name doesn’t cause confusion with any other registered, pending or unregistered trademarks. Registered and pending trademarks are easy to find on the Canadian Trademarks Register (and as mentioned, often come up in NUANS name searches), but unregistered trademarks are not so easy to locate. Unregistered trademarks are not listed in any centralized database, and provincial business name registries don’t consider them when evaluating an application to register a business name. You have to conduct your own in-depth searches to find out if a confusing unregistered trademark exists, and you should do this long before you adopt and register your business name.
Once you have determined that a business name is available for you to register and use, the best way to protect yourself is to take the extra step to register it as your Canadian trademark. This registration will prove that you own the name all across Canada, and it can help you stop others from registering and using a confusingly similar name.
We are here to fight the good fight with you!