Whether you’re a small business owner, head of a large enterprise, or somewhere in between, you’ll be thinking of ways to make sure your business finds its audience and stands out among its competitors. Developing a signature brand is a key way to do this. A brand offers a competitive advantage, and not only represents your products and services, but your company’s reputation as well. One of the most effective ways to secure your brand is to trademark it. Below, we’ll cover how to register a trademark for your business, and all manner of other things, from how a trademark compares to copyright and patents, to how long it takes to get one registered, the costs involved, and some limitations.
What is a trademark?
A trademark is a symbol or sign that sets you, or your business, apart as the legal owner of the products or services you provide. A trademark can be owned by an individual or a business, and gives you the exclusive ownership rights to use your branding to sell your products or services.
When you apply to register a trademark, you are legally ensuring only you are allowed to use the word, phrase, design or business name that you trademark.
Almost anything that identifies your business can be trademarked, but it must be unique, and specific to your brand.
Business name registration vs trademark registration
There are different reasons to register either a business name and/or a trademark. A legal business name is used to identify a business, not a specific product or service. Registration of a trademark, on the other hand, refers to the branding associated with a specific productor service. There are a few things to keep in mind when considering what’s right for your business:
- Registering a business name is a legal obligation if you choose to operate your business with a name that’s different from the name of the legal name of the person operating the business, and if the business makes more than a certain amount of money in 4 consecutive quarters. Whatever form that registration takes (sole proprietorship, partnership, or corporation), the business will need to be registered with the government at the territorial, provincial, or federal level.
- Registering a trademark is a strategic decision that prevents competitors or others from duplicating the branding of your products or services; for example the company slogan, or logo.
- You can use a registered business name as an unregistered trademark to sell your products and services, but you won’t enjoy the legal benefits of a registered trademark.
- A registered trademark alone does not identify a business legally.
- With a registered business name alone, and no registered trademark, you cannot stop another entity from registering an identical or similar name or branding as a trademark, potentially confusing your customer base.
Trademark vs patent vs copyright
Trademarks, patents, and copyright are three different types of intellectual property, and as such, offer different types of legal protection. Your requirements are based on what you are trying to protect.
Patents cover new inventions or improvements to an existing invention, or industrial and aesthetic designs.
Copyright, on the other hand, protects literary, artistic, dramatic, or musical works.
Trademark registrations, on the other hand, function as a company’s brand identity and differentiate you within the market. Therefore, trademark infringement, copyright infringement, and patent infringement are also different from each other. Below is a summary of their key differences:
| Trademark | Patent | Copyright | |
| What is it for? | Distinguishes your brand and specific goods from others in the market | Any new inventions, improvements to existing inventions, industrial or aesthetic designs | Works that are original, for example, art, music, books, or articles |
| What do you need to get one? | Your trademark must be unique and specific to your brand | Must be new, innovative, and have applicable uses | Work that is creative, original, and in one medium, for example, recorded music |
| What rights does it give you? | Exclusive ownership rights to use your branding and right to prevent others from using something similar | Patenting a name gives you the right to prevent others using, selling, making, or importing your invention or design | The right over reproduction, distribution, performances and display of the works, and creation of any derivative works. For example, music |
| How long does it last? | 10 years, with option of renewal after 10 years | 20 years | Lifespan of the author, plus 70 years |
Benefits of trademarking a business name
There are several benefits to registering a trademark. A registered trademark gives you not only the exclusive right to use your branding to sell your products and services, but also the legal protection of the Trademarks Act. Branding that isn’t trademarked may be vulnerable to theft, imitation, or copycats.
For example, a competitor could take credit for your creation, confuse your customers, or take you to court over the rights to your branding and the products or services associated with it. A registered trademark guarantees the following:
Proof of ownership
A certificate of registration is evidence that you own the trademark. It’s like a legal title to your company’s image, similar to the way title deeds prove ownership of real estate.
Exclusive rights
With a trademark, you can use your branding to sell your products and services across Canada for a period of 10 years, and renew it indefinitely, for a fee, every 10 years.
Protection against trademark imitation and misuse
A trademark stops others, e.g. copycats, from creating a similar trademark that may confuse your customers.
Right to flag trademark infringement
The Trademarks Act gives you the right to litigation under trademark law. In other words, it gives you the right to take legal action against any person or entity that tries to sell, distribute, advertise, import, or manufacture goods or services with your trademark.
Opportunities for further licensing
While trademarking your brand may initially be a marketing investment, it can also offer opportunities for new, long-term revenue streams. You may, for example, like to licence your trademark for various commercial opportunities such as merchandising, boosting popularity of your brand, raising awareness and expanding your commercial reach.
Things to know before registering a trademark
Trademarks must be used as described
Even after registering your trademark, if you don’t use it to promote your products and services, it may be removed from the Register of Trademarks. You must also be sure to use it in the exact way you describe it in your application.
Trademarks are the property of the business
While a registered business name, also known as trade name, is the identity of a business, a trademark is the property of a business. When it comes to protecting your ownership of your products or services, trademarking is important. You can trademark your trade name, or the specific names by which you offer your products or services.
What can’t be trademarked
The Trademarks Act doesn’t allow the following to be registered as trademarks –
- Names and surnames: Exceptions are made when you can prove the name or surname has acquired a second meaning in the public mind.
- Clearly descriptive marks: The trademark cannot describe the quality or characteristic of the goods or service. For example – “red tomatoes” for a tomato-supplying business.
- Deceptive or misleading marks: Trademarks that mislead the public cannot be registered. For example – using the word ‘organic’ in a trademark for a product that isn’t organically grown.
- Place of origin: In the interest of fairness, businesses cannot register trademarks describing the geographical location the goods or services come from. For example, you would not be able to trademark cotton from India as ‘India Cotton’.
- Words in other languages: It is not permitted to trademark the name of your goods or services in a different language.
- Confusing or overly similar trademarks: If your proposed trademark is confusingly similar to another registered or pending trademark, it will be analysed thoroughly to see if they look or sound alike, or if they represent similar ideas,goods, or services.
- Trademarks that are identical to, or likely to be mistaken for, prohibited marks: Official government designs, badges, emblems, symbols cannot be trademarked. The same goes for obscene and offensive material, or portraits and signatures of living or deceased people.
While you can trademark a single word from the dictionary, you can only do so if the word does not precisely describe the good or service it is referring to. This is to make sure businesses are not able to co-opt and trademark a commonly used industry term, preventing others in the same industry from describing their product without being in violation of a registered trademark.
Further, there are a number of things which may result in a trademark application rejection. A good example of this is if the mark or phrase is too similar to that of another company that has trademarked or is in the process of trademarking in the same class of goods and services. A successful trademark registration will only apply to the class you identify on your application; each additional class you choose to register, will need to be added to your application. This means that multiple people or corporations can hold the same trademark in different classes of goods and services, so make sure you take the time to think through and consult a professional on which classes you should include in your trademark registration application.
Limitations of trademarks
One thing to know when registering a trademark – while there are numerous benefits – is that you have to enforce the protections of a trademark yourself. The CIPO would reject an official trademark application that infringed upon your rights, but there is not a body or regulator that would automatically alert you to a copycat unofficially imitating your brand. If you become aware of one, you would have to take the next legal steps yourself – usually a cease and desist order – with the help of a legal professional.
Steps to trademark a business name
When you register a trademark, you’ll do so in what’s called a class of goods and services, meaning a particular category or type of product or service, for example, food and drink, or financial services.
You file an application with the Registrar of Trademarks at the Trademarks office, a branch of the Canadian Intellectual Property Office (CIPO). As part of the application process, you’ll complete the following steps:
Decide if a trademark is needed
You are not obliged to trademark your brand, but it’s a good idea if you’d like to protect your brand and any other markers of your goods and services. This will protect you legally, and avoid customers confusing your products with those of others’, especially similar ones.
Search for existing trademarks
To make sure your trademark is unique and not infringing upon anyone else’s legal rights, you’ll first want to search for trademarks in Canada. Existing trademarks are all registered in the Trademarks Registrar, and you’ll want to run a thorough Canadian trademarks search. Any existing similar trademarks may result in your application being denied, so it’s worth checking for all variations.
Complete your trademark application
As part of your application, you will need to provide an accurate representation and description of the trademark, and include an explanation of the goods and services your trademark will protect. You’ll also need to include when, and for how long, you plan to use the trademark in Canada.
File your trademark application
Once you’ve completed your trademark application paperwork, you can file it with the Registrar of Trademarks at the CIPO. There is also a government filing fee associated with submitting your application.
How much does it cost to register a trademark in Canada?
As of January 2024, the cost of the application to register a trademark in Canada is $458.
Fee for the request for the recording of a transfer of one or more applications for the registration of a trademark under subsection 48(3) of the Act
If your trademark registration applies in more than one class of goods and services, you’ll pay $100 for each additional class. If you go through the trademark renewal process after 10 years, there are further fees – $400 for the first class of goods, and then an additional $125 per class.
If you choose to consult a qualified trademark agent, they’ll likely charge their own fees, too. The upside of using an agent is that they’ll be able to run a detailed trademarks database search, called the Trademark Registrar, to be sure of your trademark’s eligibility, leaving you time to focus on other aspects of your business.
How long does the trademark name process take?
Trademarking is usually a lengthy process. From the date you file, it takes around 15 to 18 months for a trademark examiner to review your application, and tell you whether the trademark can be registered or not. This means there’s no harm in getting a head-start on the trademarking process.
Once your application is submitted, the CIPO will advertise your new trademark in their weekly online publication, Canadian Trademarks Journal. This will let other trademark owners know of your brand’s pending trademark, after which they will have two months to oppose your application if they think it conflicts with a trademark they have already registered. If no one opposes your trademark application, it will proceed to the registration phase.
The entire process, from application submission to official registration, can take anywhere from 18 to 24 months in total. That’s if your trademark application is not opposed. If it is opposed, it can take longer.
Frequently asked questions about trademarks
Do I need to trademark my business name in Canada?
You are not obligated to trademark your business name in Canada. But, it’s worthwhile because it provides legal protection for the branding associated with your products and services, ensuring others cannot co-opt their likeness to sell similar products or services. But technically, no, it is not a legal requirement of having a business.
Can a sole proprietor register a trademark?
Yes, a sole proprietor can register a trademark in Canada. Any business, registered or unregistered, can apply to register a trademark. However if you are registering as a sole proprietor, you might benefit from professional support from a trademark agent, to ensure you are completing your application correctly.
Can I use a trademark in my business name?
If it’s your own trademark you’re looking to use in a business name, then you already know it is unique, and therefore you wouldn’t be infringing on anyone else’s rights by including it in your business name. Just be clear on the distinction – that a trademark is the legal right to the branding associated with your products and services, and a business name is the legal name you operate your business under. If there is an existing registered trademark that you wish to include in your business name, you may want to also search the register of business names to ensure that it isn’t a business name that is already in use.
Is trademarking the same as registering a business?
Registering a trademark and registering a business are two different things which involve two different processes. They have different meanings legally as well as operationally. A business name is the legal name used to identify your business operations. A trademark is a symbol or sign that sets you, or your brand, apart as the legal owner of the products or services you provide. A trademark can be owned by an individual or a business, but is not the same as a business name.
Do I trademark my business name or logo?
It’s a good idea to trademark both your business name and logo. A name-only trademark offers broad protection because it prevents use of that word in any context. A logo-only trademark means others could use a unique combination of design, colours, or something visually similar to your logo. So, if you were going to register only one, a name-only trademark might offer broader protection, but if you trademark both, you’ll be very well-protected.
What happens if I don’t trademark my business?
If you don’t trademark your business, it may leave you open to copycats, other businesses, or individuals that may sell products or services similar to yours, causing confusion to your customer base, or damaging your brand’s reputation. Without a registered trademark and the rights it affords you, you’ll have no legal recourse to take steps to prevent them doing so.
Can I trademark a DBA?
Yes, you can trademark a DBA. If your DBA name is the name you use for your business, there’s no reason you can’t trademark it to give it the same legal protections as any other trademark.
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