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WHAT'S IN A NAME - TRADE NAMES vs. TRADEMARKS

Trade names and trademarks are known as "intellectual property".  The area of intellectual property law is becoming more important and fashionable, particularly with the explosive growth of franchises and the internet.  Unfortunately the law in this field is somewhat complicated and is also continually evolving.

A trade name is the name under which you conduct your business.  A trademark is a word, a symbol or a combination of both which is used to distinguish your ware or services from others.  If your trade name is used to promote your business, then the trade name is also a trademark.

It is not necessary to register either a trade name or a trademark in order to have legal rights.  If you are the first user of the name or symbol and someone else copies you to promote their business, you can stop them. 

Trade names and trademarks differ from patents and copyright.  A patent is basically an invention of new technology.  You can't patent an idea but you can protect a name or symbol by registering a trademark.  A copyright is for things like literary, artistic or musical work.  Like trade marks, it is not necessary to register a copyright to gain protection, but doing so makes it easier to prove you are the person who created the work as well as providing evidence as to when the work was created.

But registering a trademark does create certain advantages.  First, the process confirms whether there are other similar registered trademarks.  It may be unwise to spend a lot of money marketing your product only to find someone else has claim to the name or symbol you are promoting.  Second, the holder of a registered trademark has greater legal rights than someone whose mark is unregistered.  Registering a company name does not provide any legal trademark protection, but incorporating does provide a date if there is a debate over the first user of a name.  The corporate names database is also a good place to start if you are trying to determine whether a name is already in use.

The trademark registration process is not overly expensive but can take quite a lot of time to process, often 1 to 2 years.  It is possible to register on-line through the Canadian Intellectual Property Office (CIPO).  The registration is good for 15 years and can be renewed every 15 years after that.  CIPO registration protects your trademark only in Canada.  Registration anywhere else in the world must be done separately.   

A trademark can become extremely valuable.  The Coca-Cola and McDonalds names and symbols are well known examples.  A registered trademark may be a valuable asset for either business expansion or sale.

If you rely on your name or symbol to promote your business, you should consider the protection and advantages offered by trademark registration.

By Gerry N. Feehan
October 13, 2004