DISCLAIMER: The information in this article is provided for general informational purposes only and does not constitute legal advice. Choosing and registering a business name involves legal considerations that vary depending on your jurisdiction, the nature of your business, and whether other trademarks or corporate names exist. While this post discusses strategies and tips to help you think through a name, it is not a substitute for legal advice tailored to your specific circumstances. No lawyer-client relationship is created by reading this article or contacting Wires Law based on it. Before acting on any of the information provided, you should consult a qualified legal professional to assess whether your proposed business name is available and legally appropriate. Wires Law disclaims all liability for any actions taken or not taken based on the content of this post. For more details, please read our Terms of Use.
Your trading name is an asset. From a business perspective, many entrepreneurs put a lot of stock in the name. Some believe, that from a branding perspective, your name can make or break your business. Good names are easy to understand yet unique and memorable.
The problem, of course, is that there are not many names left to choose from that are short, catchy, and descriptive which stand out at the same time. This makes finding the right name an often long and tedious project.
While the laws governing trademark and trade name disputes are much more nuanced, the number one rule is simple – don’t be a copycat. From a legal perspective, choosing the wrong name can be devastating. Choosing a name that is too similar to an existing name or trademark opens your new business up to the threat of a lawsuit before you even leave the gate.
While the law differs based on jurisdiction, the general rule of thumb is to not pick a name that creates confusion in the marketplace between you and an existing business or trademark.
To avoid selecting a similar name, the first step is the good old Google test. Do a quick Google search to see if existing businesses are listed in Google search results. Google is a good preliminary indicator for whether a name might be confusingly similar to existing businesses or brands. It also helps ensure that when you start competing for that keyword on search results, acceptable results show up. That said, not all businesses have websites and not all businesses have a public facing component to them, so the Google test is by no means determinative.
If you plan on building a business that sells internationally, it’s a good idea to consider search results in those jurisdictions as well. Perhaps more importantly, ensure your name does not have a different meaning in other jurisdictions. For example, “Pee Cola” (which means very good cola in Ghana) might be a difficult sell in Canada.
Next, using a tool like ChatGPT is another great way to do a preliminary search for confusingly similar names. As an example, I prompted ChatGPT with:
Prompt:
I want to start a business called “Wires Law”, search the Web and see if there are confusingly similar names that already exist.
ChatGPT:
The name “Wires Law” is already in use by an established corporate commercial law firm founded by John Wires. This firm provides legal services to entrepreneurs and businesses across Canada, with a focus on technology, SaaS, and e-commerce clients.
You could even go one step further and do:
Prompt:
Is there a trademark registered in Canada for “Wires Law”? Search the web, including the Canadian Intellectual Property Office website to find out.
ChatGPT:
The trademark “WIRES LAW” is registered in Canada under Application Number 2041784, as detailed on the Trademark Elite website. The mark is categorized under Class 045 for personal and legal services.
If your name passes the Google and ChatGPT test, use a domain registrar (like GoDaddy) to see if a suitable domain name is not only available, but also not easy to confuse with different domain extensions. For example, if my father wasn’t the one who owned http://wires.law as a domain name, I’d consider suing, given I own the “Wires Law” trademark and the .law domain extensions are intended for legal related businesses.
The next step is the CIPO test. CIPO is short for the Canadian Intellectual Property Office, a government entity. CIPO has a public database on their website with a list of all registered trademarks. You can search the database for free to see if the same or confusingly similar names appear in search results.
To highlight the importance of the CIPO search, when I type in “Wires Law” to the search bar, it comes up with more than 10 pages of search results. While there may not be trademarks that have the exact name, it might show other marks that use “Wires” in the title that I may want to consider if I was registering a new business.
Keep in mind that just because there is not an exact match does not give you a free pass to use the name. Speak with a lawyer or trademark agent for an opinion on whether it can be registered given the particular laws, rules and regulations in your jurisdiction. Your lawyer will be impressed, and you’ll save him or her time, if you arrive having already done the above searches.
The NUANS Name Search
The final step, at least for Canadian federal and Ontario corporations or businesses is a NUANS name search. A NUANS name search report lists similar existing business names and trademarks registered in Industry Canada’s database. The federal and most provincial governments require all new businesses to complete a NUANS name search report as part of registering a new business.
While the search report is intended to show all similar business names and trademarks registered federally and in certain provinces, the search process is subject to a number of flaws. For various reasons, there may still be similar names in existence that are not disclosed in the NUANS report. This makes the Google, ChatGPT, GoDaddy and CIPO searches that much more important.
While it is your job to ensure that the new name does not create confusion with existing names, the Federal government registration agents will often review your NUANS report to determine whether you can register the name. In some cases, the agent will ask you for more information and research about an existing business, asking that you provide evidence as to why a name displayed in the report is not confusingly similar to your chosen name.
That is, in assessing possible confusion, “Corporations Canada looks at all circumstances, including a comparison of the goods, services and operating area of your proposed business with those of existing businesses. While name approval from Corporations Canada does not guarantee that you are not violating the rights of another firm or individual, it reduces your risks.”
In Ontario, the registrar often provides less scrutiny, and unless there is a business with the exact same name, typically the Ontario registrar does not question, review or scrutinize the name registration.
In either case, whether forming a Canadian federal or provincial corporation, the fact that the registrar permitted you to proceed with the name should not be seen as an indication you have chosen a name for which you cannot be sued. The NUANS report only shows names and trademarks registered in Canada and does not consider foreign jurisdictions you may want to enter at some stage.
Again, your own due diligence (searching for names outside of the NUANS process) is important to try to ensure you are not choosing a name that is confusingly similar to an existing business.
Distinctiveness
The Canada Business Corporations Act, for federal companies, also requires your name to be distinctive from other businesses that carry on the same or similar activities. Your name will not be distinctive if it merely describes your business activities. For example, the name “Coffee Bean Roaster Inc.” lacks distinctiveness since it just describes the activities of all coffee roasters.
You can achieve distinctiveness in several ways. One of the most common is to add an element to an otherwise indistinct name. “Jonny W’s Coffee Roasting Inc.” for example, is distinctive. New words also give a name distinctiveness. They can be a combination of two dictionary words such as “Infotech” or something completely new. Unusual highly distinctive names are given greater protection because they are unique and more obvious when a competitor chooses to compete with a similar name. Unique names will also likely be easier to trademark.
Consequences of Creating Confusion with Other Names or Trademarks
If your name is too close to an existing corporate name or trademark the owner of that name may commence legal action to force you to stop using your name and even to pay damages for its unlawful use.
One of the types of damages a plaintiff may claim is an accounting of profits. That is, they may seek to recover any profits you made as a result of using the name, along with handing over all marketing materials. This can be devastating for a new company.
Apple’s Name Battles
One example of a company running into name issues involves Apple. Apple Corps was established in 1968 and owned several businesses, including a record label. In 1978, when Apple Inc. (formerly Apple Computer, Inc.) was founded, Apple Corps sued the new tech company for trademark infringement due to the similarity of their names and logos. The parties reached a settlement in 1981, with Apple Inc. agreeing to pay an undisclosed sum and to not enter the music business.
However, with the launch of iTunes and the iPod in the early 2000s, Apple Inc. found itself once again embroiled in a legal dispute with Apple Corps. Apple Corps claimed that Apple Inc. had breached the 1981 agreement by entering the music business. In 2006, the courts ruled in favor of Apple Inc., stating that the company had not violated the agreement by producing and selling music-playing devices and software. The judge clarified that the agreement only prevented Apple Inc. from operating a record label or releasing music under the Apple name.
In 2007, the two companies announced another settlement, with Apple Inc. now owning all Apple-related trademarks and licensing some of them back to Apple Corps. The terms of the financial agreement were never disclosed, but the resolution allowed both companies to continue using their respective names and logos without further legal issues.
Given not all companies have the same resources as Apple, this case highlights the importance of thoroughly researching and choosing a unique business name to avoid potential trademark infringement lawsuits and confusion in the market. However, the difficulty in Apple’s case was not even knowing that one day, they would enter the music space with their now famous iPod and Apple Music. If you know you have plans to expand your business into different industries, it is worth considering those other industries as part of your naming process, and whether that expansion will impact the calculation as to whether your name is confusingly similar to an existing business name or trademark.
Legal Element
All corporations in Canada are required to add Limited, Incorporated or Corporation, or contractions such as Ltd., Inc. or Corp. to allow people you do business with to identify your business as a corporation.
Section 2 of Ontario’s Business Names Act prohibits an individual or corporation from carrying on business under any name other than their legal name unless the name is registered under the Act. For example, neither John Wires nor John Wires Inc. would be permitted to carry on business as “Wires Plumbing” unless they registered “Wires Plumbing” as a business name under the Act. Failing to register a business name can result in fines and a prohibition from commencing a lawsuit.
John Wires
Latest posts by John Wires (see all)
- The Use of Holding Companies - June 10, 2025
- Negotiating Cofounder and Shareholder Agreements - June 10, 2025
- Holding Bitcoin on Your Balance Sheet in Canada - June 9, 2025