1. Introduction to name policies
Table of contents
- 1.1 How do you reserve a corporate name?
- 1.2 Previously existing reservation by a person other than the applicant
- 1.3 Interpretations and definitions
- 1.4 Facts necessary for a name decision
- 1.5 Elements of a corporate name — Distinctiveness, descriptiveness and a legal element
The rules for the granting of names under the Canada Business Corporations Act (CBCA) and the Canada Corporations Act (CCA) are almost the same. Essentially, an applicant cannot have a name that
- lacks distinctiveness
- is likely to cause confusion with other businesses
- is likely to mislead the public
- is reserved for another business
- is obscene, or
- has an unacceptable French or English form
The policies contained in this document are guidelines for interpreting the name regulations. They demonstrate how corporate name regulations will be applied in certain types of fact situations. Since, however, each name decision requires an exercise of judgment, based on the particular facts of that case, and after considering a number of factors, any one particular regulation and guideline may not necessarily determine the decision.
The following checklist should provide assistance in deciding which policies may be important for a particular corporate name:
- Have you included an absolutely prohibited term in your name? Check regulation 25 (see section 3.0 of this document) prohibiting the use of "Cooperative", "Coopérative", "Co-op" or "Pool", "Parliament Hill" or "Colline du Parlement", "Royal Canadian Mounted Police" or "Gendarmerie Royale du Canada", "RCMP" or "GRC", "United Nations" or "Nations Unies", "UN" or "ONU".
- If you are using "Canada" or the name of a province in your name, check regulation 26(a) and (b) (see section 4.2 of this document) which prohibits a name if it connotes government sponsorship and control. Your name should not give the impression of being a government sponsored entity unless the government consents in writing to use of the name.
- If your corporation will be in a professional or educational field, ensure that your name does not mislead or connote affiliation with an existing university or professional association. (See regulation 26(c) and section 4.3 of this document).
- If your corporation will have activities of a financial nature, make sure the name does not connote carrying on the business of a bank, loan company, insurance company, trust company, other financial intermediary, or stock exchange unless the appropriate federal or provincial regulator consents in writing to the use of the name. (See regulation 26(d) and section 4.4 of this document).
- Your name must have some distinctiveness to distinguish your business from that of others. You cannot have a name that merely describes the business of a corporation, or its goods and services, or a quality of them, or is merely the name of a person or a geographic location. Check regulation 30(1) (see section 6.0 of this document). Keep in mind that the more distinctive your name is, the more protection it will get.
- If you are using the name of an individual in your corporate name, you may be required to file a consent of that individual unless he or she is an incorporator or unless the individual died more than 30 years ago, or unless the name has secondary meaning. (See regulation 28 and section 6.4 and section 6.6 of this document).
- If you are using initials in your proposed corporate name, you should check section 2.3 of this document for guidelines explaining when names with initials are confusing. If you are proposing the use of initials with surnames, see also section 2.8.8 of this document.
- Your corporation should not appear to be the holding corporation of other, unrelated businesses which happen to use the same distinctive element as yours in their names. The use of the word "Group" can give this impression. Check section 2.4 of this document if you are planning to use the word "Group".
The name you propose will not be found to be available if it seems likely to cause confusion with existing business names (whether or not incorporated), official marks or trade-marks. Confusion can be between names A and B so that A and B are likely to be mistaken for the same corporation, or it can be between A and B if A misleadingly looks related to B. Both are instances of confusion.
You are required to obtain and file a Nuans report that will list business names and trade-marks which look and sound the same as your name. A Nuans report may be obtained in two ways:
- A Nuans report may be requested from a private company known as a search house. You can find a list of these firms on the Corporations Canada website (www.corporationscanada.ic.gc.ca) by following the links "Name a Corporation", and "Nuans Registered Members, or in the Yellow Pages of your telephone directory under incorporating companies, incorporation name search, searchers of records or trade-mark agents — registered. The search house will charge a fee for this service.
- A Nuans report may be ordered online at the Electronic Filing Centre, at www.corporationscanada.ic.gc.ca from the Nuans Real-Time System. The system provides direct access to the Nuans search service but does not provide the professional assistance and recommendations often available from a registered Nuans search house. Applicants should note that a Nuans report that is generated and submitted to the Director may be rejected if the proposed name does not meet the requirements of the CBCA/CCA name regulations.
If you order a Nuans report, that report has a life of 90 days from the date it is requested. Most search houses can advise you whether your proposed name is likely to be accepted by Corporations Canada. The final decision, however, always rests with Corporations Canada.
Corporations Canada will examine the Nuans search with certain factors in mind: Do any of the names, trade-marks or official marks which sound alike appear to be in the same business as yours? Would they likely have the same type of client, or territory of operation as yours? How much protection do they deserve?
Corporations Canada will have the information listed in the paragraph above only if you provide it to them when making your submission. If you have satisfied yourself that your corporation will not create a likelihood of confusion, give Corporations Canada the basis for your conclusions. Chances are it will satisfy Corporations Canada. Name submissions must often be rejected for lack of this kind of information. For more details concerning how Corporations Canada determines whether there is a likelihood of confusion, see regulations 18 and 19 (see section 6.1). For more details about what information to file see section 1.3. Failure to provide this information with the first submission of your proposed corporate name will likely result in the rejection of your name request. Approval is often not possible until the information is provided.
- If you propose to take the name of a corporation which has been inactive for 2 years, check regulation 20 (see section 2.5 of this document). For a period of two years after the inactive corporation ceases operations, the memory of its name is presumed to stay in the public's mind. You will not be able to have the exact same name or the same distinctive element during that two year period. As explained in item 11 below, you may choose to resolve this problem by adding some distinguishing feature to your name which can be removed after the two year period has expired.
- Under certain conditions, you are permitted to have names that appear to be confusing with an existing business name (i.e., appear to be the same business as an existing business, or appear to be affiliated with an existing business). Essentially, the existing business must consent in writing to the use of its name, or, must consent and undertake to change its name. Even then, because of the two-year period referred to in item 10 above, there may still be confusion unless certain other conditions are met. If you wish to use the name of a corporation which has been inactive for two years, check regulation 20 (see section 2.8.1 of this document). If you wish to incorporate an affiliate of an existing corporation, check regulation 21 (see section 2.8.2 of this document). If you wish to incorporate
a corporation which will take over the business of an existing corporation, check regulation 22 (see section 2.8.3 of this document). If you are proposing an amalgamation, check regulation 17(2), 23 and 72.1 (see section 2.8.5 of this document) for names which are permissible for the amalgamated corporation.
In order to use a name identical to the name of an affiliated corporation whose assets your corporation has or will acquire, check regulation 24 (see section 2.8.6 of this document). If the existing corporation whose name you wish to take is bankrupt, check section 2.8.9 of this document for the consent that is required.
- If your proposed name appears to be confusing with a trade-mark, special considerations apply. If a trade-mark has been registered for 5 or more years, the applicant must get the consent of the trade mark owner. If the trade-mark has been registered for less than 5 years this may not be necessary. For information on how to get protection from trade-marks which may be registered after your incorporation, check section 9. If a proposed name is confusingly similar to an existing official mark adopted and used pursuant to the provisions of section 9 of the Trade-marks Act, it will be rejected. (For more information on trade-marks, official marks and trade names, see section 2.7 of this document).
- Corporations Canada is reluctant to approve names for profit-making corporations which contain words such as "institute" or "club". These words are more commonly used in the names of not-for-profit corporations and may, for that reason, be misleading. (See section 7.0).
- There is no difference between the regulations that apply in respect of the continuance or revival of a corporation and the regulations that apply in respect of incorporation.
- If you are proposing a bilingual corporate name, you must ensure that the two language forms are not so different from one another that they appear to be two different corporations. (See section 9.0 of this document).
- If the name you are proposing is in a combined English and French form, it can only include one legal element which is "Inc." and this legal element must be at the end of the name. (See Regulation 32 and section 9.5 of this document).
- If the French and English forms of your corporate name are similar enough, you may not need two Nuans search reports. (See section 9.4 of this document).
- If a corporate name contains a word or phrase, or connotes a business that is obscene, the name is prohibited. (See Regulation 27 and section 5.0 of this document).
1.1 How do you reserve a corporate name?
To reserve your proposed corporate name, you must:
- obtain a Nuans search on the proposed name, and
- apply to Corporations Canada for determination that the proposed name does not contravene the regulations. In order for Corporations Canada to make this determination, the proposed name has to be submitted to Corporations Canada accompanied by the Nuans search report. This can be done before articles are filed if it is important that the articles not be rejected (save yourself time by using this method!). Otherwise, Corporations Canada's decision will be made when the articles (and other forms necessary to complete the application) are filed with a proposed name. The articles will be rejected if it is found that the name is not available.
Once Corporations Canada has decided that a particular name is approved, that name is automatically reserved for 90 days, retroactive to the date the Nuans search report was requested (i.e. the date appearing in the right-hand column beside the proposed name). Please note that if two consecutive dates appear in the right hand column, the reservation will be retroactive to the earlier of the two dates.
1.2 Previously existing reservation by a person other than the applicant
Under the CBCA, the Director is not permitted to reserve a corporate name if it is the same as, or is confusing with, a corporate name that has, before the date of the request, been reserved by the Director for another person.
1.3 Interpretations and definitions
The regulations set out the following definitions:
Reg. 17. (1) The following definitions apply in this Part.
"corporate name" means the name of a corporation. (Version anglaise seulement)
"distinctive", in relation to a trade-name, considered as a whole and by its separate elements, means a trade-name that distinguishes the business in association with which it is used or intended to be used by its owner from any other business or that is adapted to so distinguish them. (distinctive)
"official mark" means an official mark within the meaning of subparagraph 9 (1) (n) (iii) of the Trade-marks Act. (marque officielle)
"trade-mark", means a trade-mark as defined in section 2 of the Trade-marks Act. (marque de commerce)
"trade name" means a name that has been reserved by the Director under subsection 11(1) of the Act, or the name under which a business is carried on, or intended to be carried on, whether it is a corporate name or the name of a body corporate, trust, partnership, sole proprietorship or individual. (dénomination commerciale)
"use" means the actual use by a person that carries on business in Canada or elsewhere. (emploi)
Reg. 18. A corporate name is confusing with
- a trade-mark or an official mark if it is the same as that trade-mark or official mark or if the use of both the corporate name and either the trade-mark or the official mark, as the case may be, is likely to lead to the inference that the business carried on or intended to be carried on under the corporate name and the business connected with the trade-mark or official mark, as the case may be, are one business, whether or not the nature of the business of each is generally the same; or
- a trade-name if it is the same as that trade-name or if the use of both names is likely to lead to the inference that the business carried on or intended to be carried on under the corporate name and the business carried on under the trade-name are one business, whether or not the nature of the business of each is generally the same.
1.4 Facts necessary for a name decision
To obtain a favourable name decision, you must provide Corporations Canada with sufficient information. Even if no confusingly similar names appear on the search report and there is therefore no concern about confusion, without some information about what your business will be, Corporations Canada cannot properly assess whether a name
- connotes government sponsorship
- connotes the business of trust, loan, insurance or banking
- misdescribes, or merely describes the business of a corporation
If there are names on the search report that look or sound similar to your name, you must provide the type of information listed in section 19 of the Regulations:
- the type of business the proposed corporation will carry on and how this business is dissimilar to the activities of existing businesses which have similar names.
- where the proposed corporation will carry on its business and whether this territorial area is different from the area in which other businesses with similar names and similar activities are operating.
- what types of clients and suppliers the proposed corporation will be doing business with and whether they are different from the types of clients with whom existing businesses, with similar names and similar activities in a similar territory, will do business (e.g., deal with retailers, computer programmers or the general public).
- the derivation of the distinctive element(s) of the proposed name. If there is a reasonable explanation for why the applicant wants that distinctive element, it is less likely to suspect that the applicant is trying to trade on the goodwill of an existing business with a similar name.
- whether the proposed corporation will be related to existing businesses with similar names or trade marks and if so, the written consent of some or all of them.
- whether the proposed corporation has a foreign parent with a similar name which carries on business or is known in Canada. If so, written consent is required and the proposed corporation must add "(Canada)" or "of Canada".
- whether an earlier reservation of a similar name which appears on the Nuans search report, was made by the same applicant.
- the written consent of an individual whose name appears in the corporate name, unless that individual is an incorporator. For the CBCA, the consenting individual must indicate that he or she has or had a material interest in the corporation.
If the applicant fails to provide us with this information, the name must often be rejected because Corporations Canada has no basis to be satisfied that the new corporate name will not create a likelihood of confusion with existing similar names appearing on the search report.
Without this information it may appear that the proposed name will likely be confused with an existing name which appears to be in the same business, in the same territory. With the information, it may become clear that the two businesses are, in fact, significantly different, in different territories, dealing with different types of suppliers and customers and therefore confusion is not likely.
Generally speaking, if the applicant has reviewed the Nuans search report carefully and is satisfied in his/her own mind that the new corporation is not likely to cause confusion, it is merely a matter of giving Corporations Canada sufficient information to reach the same conclusion. Applicants should always be reasonably cautious in reaching their conclusion, however, because the applicant risks being sued by an existing business or being required by Corporations Canada to change its corporate name after Corporations Canada has been persuaded by an existing business that the new corporate name really does create a likelihood of confusion. Of course, the new corporation would always have the opportunity to state its case before Corporations Canada's decision to change its name was taken.
1.5 Elements of a corporate name — Distinctiveness, descriptiveness and a legal element
Generally, a corporate name is composed of three elements:
- A distinctive element which is the unique identifier of the name.
- A descriptive element which describes the line of business. (Not absolutely required)
- A legal element which indicates the legal status of the corporation as an incorporated body.
|distinctive element||descriptive element||legal element|
To decide whether or not a proposed name is available, several guidelines apply. In accordance with the CBCA and its regulations, Corporations Canada must consider if the proposed name is:
- absolutely prohibited
- qualifiedly prohibited
- Lacking distinctiveness
- deceptively misdescriptive
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