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.