Know the Rights Associated with your Business Name for Better Brand Management
Brand Management and protection is an integral part of any business strategy. The use of social media as a key marketing platform and the move to online sales has made this statement truer than ever before. But many business owners often mistakenly believe that the brand they’ve spent time and money building holds inherent exclusivity rights. In fact, the legal root of a name used in branding dictates what rights and protections are available to its owner.
What a business owner considers to be their ‘brand’ is often a corporate name, a tradename, or a trademark. Understanding the legal difference between these is fundamental to understanding their value to your business and the steps required for their protection:
A CORPORATE NAME is the legal name of a business registered federally, provincially, or territorially in accordance with a statute granting incorporation authority (Business Corporations Act, Not-for-Profit Act, etc.). This is a business’ ‘formal’ name used to identify it as a legal ‘person’; an entity separate and apart from those who ‘own’ it. A corporate name is the identifier that must be used when a corporation enters contracts and issues invoices and may be recognized by the inclusion of a ‘legal element’ (“Inc., “Ltd.”, “Limited”, etc.)
Example: Nike Inc.
A corporate name must be registered at the applicable corporate registry designated in the statute governing incorporation as a matter of course. The main purpose of corporate registration is to inform and protect the public. A member of the public may choose to pull a business’ corporate registration information to determine who holds shares in that corporation or what address may be used for the service of legal documents. Before a corporation is incorporated the chosen name is subject to a search to ensure another entity with the same name is not already in existence.
Unlike a corporate name, a TRADENAME doesn’t signify the existence of a legal entity in its own right. Where a business uses a name in its public facing operations that differs from its corporate name it is required to register that name as a tradename. Sole proprietorships and partnerships are required to register tradenames as a matter of course while numbered corporations wishing to carry on business under a memorable name will choose to complete tradename registration.
A member of the public may choose to pull a tradename registration to identify the corporation operating pursuant to that name. Once identified, that person may pull a corporate registration for the same purposes mentioned above.
While a corporate name and a tradename are both used to identify a business, a TRADEMARK is used to distinguish the source of your goods or services from those of others in the marketplace. A trademark can consist of words, designs, tastes, textures, a mode of packaging, holograms, scents, 3D shapes or colours.
If you use your corporate name or tradename as your brand you will earn the right to exclusive use of that name in the jurisdiction where your name is registered and where you conduct your business. However, those rights are onerous to enforce and territorially limited.
Registering your corporate name or tradename as a trademark provides a greater degree of protection to your business and affords certainty that you won’t run into infringement issues as you expand your operations in the future. Trademark registration provides nationwide protection and exclusive rights to use your trademark in association with the goods and/or services named in the registration documents. The Canadian Trademarks Act offers owners specific avenues to pursue parties who encroach on those exclusive rights. In addition, once registered, the Canadian Intellectual Property Office protects your trademark on your behalf by flagging and disallowing the registration of any subsequent trademark applicants who attempt to procure registration of a confusingly similar mark. For a detailed discussion of the benefits of trademark registration see our article, “To Register or not to Register: The Value of Registering Intellectual Property”.
Material in this article is available for information purposes only and is a high level summary of the subject matter. It is not, and is not intended to be, legal advice. You should first obtain professional legal advice prior to taking any action on the basis of any information contained in this article. This article is copyrighted. For permission to reproduce this article, please email Swainson Miki Peskett LLP: firstname.lastname@example.org