Trade Name vs Trade-marks
Many people confuse trade names and trade-marks and think they acquire trade-mark rights by virtue of having a trade name.
A trade name or business name is a name under which a proprietor or company carries on a particular business. It may be the corporate name of a company carrying on the business or it may be a name registered with provincial authorities. Generally such registrations do not confer any proprietary rights to the name, and simply enable the public to ascertain who is using a particular trade name.
The owner of a trade name is entitled to bring an action for passing off against a person that uses a trade name that is likely to cause confusion between the businesses of the parties. A trade name may itself incorporate a trade-mark, or may itself be used as a trade-mark (to denote the origin of goods or services, as opposed to being a name) and may therefore be registrable and enforceable as a trade-mark. The owner of a trade-mark or trade name may also be able to prevent another from registering a confusingly similar corporate name.
The trade name can be registered under the Trade-marks Act only if it is also used as a trade-mark specifically to identify products or services.
In certain circumstances, a trade-mark registration may be declared invalid because of the prior use in Canada of a trade name which is similar to the registered mark.
O’BRIEN TM SERVICES conducts comprehensive searches of the Registry, existing trade names and common law references, and provides clearance opinions before incurring the costs of filing an application.