Naming a Business - What’s What?

March, 2014

Every business needs a good name.  I’ve yet to meet a client who’s happy to continue calling a business 7456984 Ontario Inc.  There’s just not a ring to it.  The following is some advice I give to client’s about new names.

My first step is to always get on the same page with the client.  It’s usual that the media has misled them as they ask to copyright their name.  So, first we start speaking the same language.  We call things what they’re supposed to be called.  (Thanks Confucius.)

The second step is appropriate protection of the names.  Once we agree on what the business is going to be called, we satisfy the legal requirements and consider acquiring the best legal protection for those names.

The third and last step is appropriate use.  I give my clients a guide about how to use their various names.  You’ll maintain the most powerful legal protections when you use your names in the appropriate manner.

Step 1: Speaking the Same Language

Too many times the media will dive head first into a legal field.  Laws take a long time to read and understand.  No lawyer knows every law.  That’s why it’s important to speak with a lawyer who has experience in a particular field.

It may seem obvious, but first it’s useful to identify what a name of a business is.  A name is an identifier.  It identifies a source of products and services.

In discussing names, there are four things you need to know.

One, a corporate name is the name of your corporation.  It’s set out in your Articles of Incorporation.  Typically, it will end in either “Incorporated”, “Limited”, or “Corporation” or the abbreviations of such terms.  (For your information, not-for-profit corporations have not been required to include these endings in their corporate names, although some have.  Without the endings, many not-for-profits are asked endlessly if they are indeed corporations.)

Two, a business name is a name that a person or a corporation has adopted to call itself.  A business may call itself the business name instead of, or in addition to, a corporate name or an individual’s name (e.g. John Smith carrying on business as ‘The Cleaner’).  (As an aside, people also talk about ‘trade names’.  This is an ambiguous term and should be avoided.  When someone uses it, it could be referring to a business name or a trade-mark.)

Three, a trade-mark is not a name at all.  It’s a mark that a business uses to differentiate its products and services from the products and services of its competitors.

Four, copyright doesn’t apply to the name of a business at all.  Copyright refers to the legal protection that the law gives to dramatic, artistic, literary, and musical works upon creation.  It’s incorrect to talk about copyrighting a name.

Before we move on, it’s important to note that a person can use an identical name as their corporate name and as their trade-mark, for example, Blackberry Limited and its trade-mark Blackberry.

So, now we’re speaking the same language.  How do we protect them?

Step 2: Protecting Your Name

Corporate Names.  Before you choose a corporate name and incorporate, it’s important to receive legal advice about the name you wish to adopt.  The system won’t stop you from incorporating under any name you select (as long as it’s not identical to another corporate name).  However you should take all steps to vet the name you’ve chosen.  It can be quite costly to change your name after finding out you’ve infringed someone else’s rights by incorporating under the name you did.  After incorporating, you’ll have all the legal protection that you’re entitled to because you incorporated.

Business Names.  If you want to carry on business under a name other than your own name or the corporate name, you have to register the business name with the Ontario government.  The system for registering names is self-policing.  That means you could register any name you wanted, even names identical to existing names like Coca-Cola.  The system wouldn’t stop you.  (However, the Coca-Cola company would be certain to insist that you cease and desist immediately.)

Trade-marks.  It’s beyond the scope of this article to canvass Trade-mark law.  That said, it should be noted that no one should adopt a trade-mark without careful pre-search screening to see whether it would be advisable from a legal perspective to adopt.  A business will have multiple trade-marks.  It’s important for a business to assess all of its trade-marks and determine which ones the business wants to use for many years to come.  Then with the help of a trade-mark lawyer a trade-mark application can be drafted and filed.

Step 3: How to Use Your Names

Corporate Names.  These are the only names you should set out in any legal contract.  It’s important to make the other party to the contract aware that they are signing a contract with the corporation and not with you as a person.

Business Names.  As long as your business name is registered, then you can call yourself this name.  Instead of saying your business is 7456984 Ontario Inc. when answering the phone, you can use your shorter and catchier business name.

Trade-marks.  I can’t do trade-mark usage justice here.  What I can say is that you should mark anything you regard as a trade-mark with a “TM”.  That marking can give you additional legal protection in case you ever need to enforce its rights.

Conclusion 

So, if we all speak the same language, we can all be more knowledgeable about how to protect and use our names in a way that is legally beneficial.

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Ryan K. Smith is a lawyer and trade-mark agent at Feltmate Delibato Heagle LLP. He specializes in corporate and commercial law with expertise in intellectual property matters including trade-marks, copyrights, privacy, information technology, and confidential information.  You can reach Ryan at rsmith@fdhlawyers.com and (905) 287-2215.