Naming a federal corporation in Canada: the rules, and why approval is no trademark

Section 10 of the Canada Business Corporations Act requires every corporation's name to include Limited, Limitée, Incorporated, Incorporée, Corporation or Société par actions de régime fédéral, or one of the abbreviations Ltd., Ltée, Inc., Corp. or S.A.R.F. The name may be set out in an English form, a French form, an English form and a French form, or a combined English and French form. A corporation that prefers no word name can take a numbered name: a designating number, the word Canada and a legal element.

The Canada Business Corporations Regulations, 2001 list what is prohibited. Section 30 bars a name that is only descriptive, in any language, of the business, goods or services; that is primarily or only the name, or the first name or family name used alone, of an individual; or that is primarily or only a geographic name used alone. An exception applies where the name has acquired distinctiveness through use. Section 19 bars a name whose use causes confusion with a trademark, official mark or trade name. Other sections bar words such as cooperative and Parliament Hill, names connoting government, university, professional association or bank connections without consent, and the family name of a person living or dead within thirty years without consent and a material interest.

Corporations Canada puts its test in one line: the key to naming your corporation is that the name must be distinctive. Its own example of a name lacking distinctiveness is Car Manufacturer Inc.

The process changed in ways many guides have yet to catch. For incorporation, the name search and preapproval are now integrated into the online application, and Corporations Canada states that no separate report needs ordering before applying. A separate NUANS report is still required for some other filings, such as revival and amalgamation, and a NUANS search is valid for 90 days. A name preapproval is also valid for 90 days.

Corporate name rules and trademark rules run in parallel, and section 30 of the regulations reads much like the registrability grounds in the Trademarks Act. That is as far as the overlap goes. Corporations Canada approving a name records the legal entity under it; exclusive rights to use the name as a brand across Canada come only from a registered trademark.

The reverse also holds. A name can pass the corporate check and still be refused as a trademark, or infringe someone's unregistered rights. Treat the corporate name, the trademark and the domain as three separate registrations of one decision, and make that decision on trademark strength first.

A distinctive element solves both problems at once. An invented or unrelated word plus a short descriptor and a legal element satisfies Corporations Canada and gives the trademark application its best start.

Founders who want speed can incorporate under a numbered name and register the brand as a business name and trademark once it is settled. That keeps the legal entity from locking in a name before the brand work is done.