January 1, 2010 By: Wing T. Yan
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What’s in a name?

“What’s in a name? that which we call a rose
By any other name would smell as sweet.”

Shakespeare – Romeo and Juliet, 1594

These lines from Shakespeare would be taken with a pinch of salt by an entire industry involved in trademarks, designs, domain name and brands that we come across very day of our lives. It’s been estimated that each one of us comes across 1500 trademarks every single day and a staggering 30,000 when we go to the supermarket!

Some of the trade names are worth millions e.g. the Coca Cola trade name was worth over 67 billion dollars in 2006.

What is a Trademark?

A trademark is defined as any word, design, or any combination of both, inherently capable of distinguishing the goods or services of one undertaking from those of other undertakings.

Difference between a Trademark and a Trade name

A trade name is the name under which you conduct your business i.e. the business name that is registered by an individual or a corporation to conduct their business. Thus, the “123456 Real Estate Development Corporation” is a trade name; whereas “The Manors of Comfy Living” used by the Development Corporation is a trademark.

Advantages of Using a Trademark, whether registered or unregistered

  • Trademarks provide information that helps people to make decisions regarding purchase of products or services as the marks often suggest certain reputation and credibility;
  • It can lead to greater customer loyalty and increased resistance to competitors’ marketing actions;
  • It increases effectiveness of marketing communication like advertising;
  • Enables the public to verify the registration and ownership of trademarks; and
  • It allows the Development Corporation to stop other infringing use of an identical or confusingly similar trademark by others. If the trademark is registered with the Canadian Trademarks Office, it is deemed to be known across Canada; and
  • It is easily recognizable and can be used for branding the Development Corporation.

Use of a Trademark for the Real Estate Development Corporation

The main function of a trademark is to enable consumers to quickly and efficiently recognize the trademark holder’s goods and services without infringement from a competitor or an upstart.

A creative name gives the Development Corporation a sense of identity and this identity should be protected diligently.

Take the example of the trademark “The Manors of Comfy Living”. This unique and distinct name creates a sense of character or emphasizes attributes that will add to the marketability of the community. The name gives the development an edge over competing developments. It tells everyone that the development gives them a “comfortable living” feeling and this would add to the marketability.

At the same time other corporations may want to use the same name or a similar name to reap the obvious advantages. Herein lies the catch. If you do not have a trademark registration, your competitors will be free to use your name and the Development Corporation will have little or no remedy. Even if some remedy were available, it would involve substantial legal costs to avail it.

Conclusion

In a perfect world, people respect one another’s property, including trade names and trademarks. In today’s competitive environment, trademarks, being a major form of intellectual property, have assumed an important place in business. Thus, all steps should be taken to register and protect your trademarks.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.