All about business names

Incorporation doesn’t protect your name

Incorporating your business does NOT guarantee you name protection, and it doesn’t guarantee that you actually have the right to use the name you’ve registered.

It is not incorporation that protects your corporate name. Incorporation is just a way of organizing how you do business. When your company is incorporated, the government is merely acknowledging the ‘birth’ of a new legal person: the corporation.

The federal government makes it very clear that they take no responsibility for your use of the name, even though they’ve approved it. In the corporation information sheet they include with your corporation documents, they say:

“Where a name has been approved, be aware that the corporation assumes full responsibility for any risk of confusion with existing business names and trademarks (including those set out in the NUANS® search report). The corporation may be required to change its name in the event that representations are made to Corporations Canada and it is established that confusion is likely to occur. Also note that any name granted is subject to the laws of the jurisdiction where the corporation carries on business.”

In other words, you’re on your own. You’ll find similar statements in documents the provincial governments provide, for instance, with documents such as the Master Business Licence in Ontario, which is issued when you register a business name.

Unless you register your name as a trademark, the only name protection you get is through the laws concerning ‘passing-off’. Under ‘common law’, you get to prevent others from trying to pass off their goods and/or services as coming from your corporation. If there’s a dispute, it’s basically up to the provincial courts to decide who gets the right to use the name.

The most effective way of protecting a name is by trademark, and registering the trademark provides the best protection.