06
MAR
2013

Choosing a Corporate Name – Some Practical Considerations – Part 3

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Use By Incorporating Jurisdiction of NUANS

An important point in Ontario is that once the NUANS report is obtained and assuming that its period of validity (90 days) has not expired, it can be submitted to the Director of Corporations at Queen’s Park in Toronto together with Articles of Incorporation or Articles of Amendment and the name will issue in due course.  In other words, the Corporate Branch will not review the NUANS to determine whether confusion may exist with a name or mark used by another. This burden and risk are assumed solely by the applicant for the name.  This is so despite the fact that the Ontario government requires a NUANS to be filed with the authorizing Articles.

The situation is otherwise with respect to Corporations Canada, which administers matters concerning corporations incorporated or continued under the Canada Business Corporations Act (the federal general incorporating statute).

In that situation, an examiner in Ottawa will review the NUANS report and may object that the proposed name appears to conflict with the name or trade mark of another party.  Sometimes one can convince the examiner that the objection is not reasonably founded, but not always.   In this respect, proceeding under Ontario law to obtain or change a corporate name offers a general advantage in our judgement.  Sometimes the applicant can conclude for various reasons that the risk of a conflict, while apparent in theory, may in practice be unlikely to occur, so it saves time and cost to proceed under Ontario law where no risk is incurred of an examiner’s objection.  Sometimes indeed, it may be of interest to a federally-incorporated company to transfer to the Ontario corporate jurisdiction to avoid the risk of dealing with such objections and the related time and cost expenditure.  For example, if a federal company wishes to change its name and is confident that an objection from a third party will not be received despite the appearance of a conflict raised by the NUANS, rather than try to fight it out with Corporations Canada it should consider applying for transfer to the jurisdiction of the Ontario Business Corporations Act.  This can be achieved bywhat is known as the continuance procedure, whereby it can become governed by the Ontario Business Corporations Act, file the NUANS with its articles and obtain the desired name without further ado.

If you require assistance in selecting a corporate name for your business, contact us.

About the Author
Gary Gillman holds undergraduate law degrees in Civil Law and Common Law from McGill University in Montreal, Quebec. He is a member of the Quebec Bar and has been a member of the Ontario Bar since 1983. He was trained and practiced for many years in nationally-known law firms in Montreal and Toronto, principally in numerous areas of corporate and commercial law. In 1995, he obtained a Master’s Degree (LL.M) with Distinction in European Management and Employment law from the University of Leicester in England. His training in the law of European economic and political integration allows him to help clients understand international business and legal trends, the North American Free Trade Agreement and economic globality. Gary regularly attends and speaks at professional conferences and keeps current on all the legal areas he covers. Gary has authored during his career numerous legal articles and papers for professional or trade journals. Gary co-authors the quarterly Gillman Financial Regulatory Report, a business law and financial law newsletter of our firm.