Trade Names v. Trademarks
From LawDepot Law Library
Disclaimer
The information contained within this article should not be construed as legal advice. If you require detailed information and/or advice about corporate law, trademark law, tax law or any other subject area considered in this article, please consult with an attorney in your area. LawDepot accepts no liability for errors and omissions contained within this article. This article is current to January 25, 2009.
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Trade names vs. Trademarks
It is important to appreciate the difference between a trademark and a trade name. A trademark is a distinctive sign, design or logo that distinguishes goods, wares, and services from that of competitors. A federally registered trademark gives you exclusive rights to the use of the trademark throughout Canada. This means that no one else can use the trademark without your permission.
It is also possible to have rights in a trademark that you have not registered with the government. This is referred to as an unregistered trademark. An unregistered trademark does not give you the rights to use it throughout Canada, but it does provide you with some limited territorial rights. These rights are typically limited to the geographic area in which your business has acquired a reputation and your trademark has become known. Proving the reputation of your business in court can be difficult however, so a registered trademark is still much preferred to an unregistered one, even if you only plan on doing business in a limited area.
Though commonly confused with a trademark, a registered trade name provides you with almost no protection. A trade name registry simply serves as a formal declaration that you are carrying on business under the name in question. Registering a Corporate Name (a service provided by LawDepot along with the incorporation of your company) does provide you with some limited protection. Once you have registered a Corporate Name, no other company – either within the province or throughout Canada, depending on whether you have incorporated provincially or federally – can carry on business under the same Corporate Name or one close enough to generate confusion. If a company does acquire a Corporate Name which you feel is too close to your own, Sections 12 and 13 of the Business Corporations Act (in reference to Federal corporations) allow for a process through which you can petition the registrar to have the name changed.
It should be noted that the extended use of a trade name or Corporate Name can lead to the creation of an unregistered trademark. As outlined above, this unregistered trademark would only provide you with protection in the geographical area where your business has established a reputation.
