NUANS Report opinion letters

The examination of proposed names, and our comments as a search house, are critical to the establishment of our reputation. It is critical that you understand that neither the Governing Jurisdiction nor this search house providing a NUANS report approves or rejects the use of new names for new corporations. This responsibility rests solely on the shoulders of the Incorporator. Our job is to assist the incorporator in making this decision by bringing to his or her attention any problems that we see in the hope that lawsuits might be avoided.

The Government acts as a Registry responsible for recording everything that the incorporator asks for. Disputes are not the responsibility of the Government, however, the Government will act as a instigator if a complaint is filed.

The searcher is not required to know the law as a lawyer might, but rather advise the lawyer that certain names might cause him problems at some future date and therefore he should look more closely before he decides to use the name.

In a review of The Business Corporations Act dictates what constitutes bad names without making reference to what is good. Section 12 prohibits the use of a name when;

1. 12(1) The name shall not be identical to any name that is;

   1. currently on the Registry.

   2. reserved for future use.

   3. prohibited by the Regulations.

2. 12(2) The name is disapproved by the Registrar because the name;

   1. is objectionable. The name is vulgar or immoral to you, the reader.

   2. is likely to mislead or confuse.

      This statement causes the most problems as someone other than the Registrar is charged with the responsibility of determining if the name is confusing. The normal test that we apply is "What does the name really say" and "How do the two names stand beside each other"?

      If you saw the two names beside each other would you be able to determine the nature of work of each without being confused. Would you assume that the two businesses offered the same services or that the services of one were the services of the other. Would you assume that the businesses are somehow related or of the some owners.

   3. is similar to an existing name.

      The test here is the same as the one above. As an example of the above "Hair by James" is the same as "James Hair Salon".

      There are however, exceptions to the above. The common exception is the written consent to the user of the offending name from the first user of the name. In the example above these two names could exist beside each other if the owner of the first business gave consent to the owner of the other.

      In addition to the Act there exists a set of Regulations that govern how the act is to be interpreted.

Here are some rules to follow;

1. Alberta corporations can contain any letter or character that can be produced by a typewriter including punctuation marks, however, the addition of punctuation marks is not sufficient to distinguish one name from another.

2. All incorporated companies must contain an acceptable legal element that always ends the name of the company. The legal elements are Limited, Incorporated, and Corporation. Also acceptable are the abbreviations of these words and the French equivalents.

3. A society must contain the legal element somewhere in the society's name, however, it does not have to be at the end. Society legal elements include Society, Club, Association, foundation, or Group. The Registrar can give permission for the use of other names, however this is rare.

4. If a company is currently active you cannot form a new company by changing only the legal element, abbreviating some word, adding a homonym or phonetic similarity, or adding the current year in brackets unless you obtain and file written consents from the offended company.

5. No corporation shall have a name that is;

   • too general,

   • is only descriptive of the products sold,

   • is primarily or only the name of an individual other that when used as part of the name of a Professional Corporation.

   • consists primarily or only of a geographic name, unless the name has, through use, acquired a meaning that renders the name distinctive.

6. No corporate name shall be longer than 70 characters in length, including spaces and punctuation marks.

7. The first character of a corporate name must be an Arabic numeral or an alphabetic letter.

8. No corporation shall have a year in brackets unless the corporation is a successor company and the year denotes the year of succession.

9. No corporation can have a name that denotes some form of:

   • governmental, royal or vice-regal approval or authority unless it in fact, has such authority or approval,

   • sponsorship by some school, college, or university, or sponsorship or control by any government or government department or agency in Canada or any of the provinces,

   • carries on the business of a bank, loan company, trust company, insurance company, trust company, stock exchange, or other financial institution that is regulated by Federal legislation,

   • is affiliated with the Olympic games or its organizing committee,

   • the operation of Kananaskis Provincial park, unless such names have the written consent of the governing authority.

10. No corporation can use the phrase "Professional Corporation" unless the users of the corporation are members of a Professional Society governed by a Provincial Act and are authorized to form Professional Corporations.

EXAMINATION OF THE NUANS REPORT

We can supply NUANS reports for all of Canada, however, we can not reserve names as part of the searches for B.C. or Quebec. We can reserve names in these provinces by submitting written requests, with payment enclosed.

The Alberta NUANS report consists of 6 pages.

• The first 4 are a mixture of;

  • existing, reserved or proposed Alberta corporate names;

  • existing, reserved or proposed Federal companies as they have the right to use their names in Alberta, & Alberta trade names.

• The last two pages contain summary information about trademarks.

The report does not contain a search of names of companies that are incorporated in other province and does not guarantee that the name is available in any other province.

Report Terminology

In reading the report you will note at the top of the page is a "?" followed by a name, a number over the word Alberta, and page number over a date. This line denotes the name of the search, the reservation number, the jurisdiction, and the date of the search. The number is the accession number assigned by the main computer. This number denotes the order of the requests. The lowest number has first right to the name.

All search houses in Canada use the same central computer. Once all the requests for the day have been entered on the system the search process is closed for new requests and the search begins.

One of the first matches that is found is the identical name as searched. You will note that the identifying number of the first match, with the addition of the "AB" to denote Alberta, is the same as the reservation number. Below this number is the abbreviation PROP.ARVIC, which identifies ARVIC as the search house that has proposed this name. This process creates a clear audit trail to insure that later searches for the same name will produce occurrences of this subject name, the date of the search and the reservation number.

Please note the one working day difference in the date of the name was proposed and the date of the match of the same name. This date difference assures you that the data base was closed after the proposed name was entered and before the search was processes and guarantees that your report contains a complete list of all names that have been submitted to the data base up to the close of business on the first date.

Trademarks Section

The last two pages of the Alberta NUANS report contain lists of registered and pending Trade Marks which, although not protected by Provincial law, may be the single biggest reason for the rejection of a Corporate name.

We read each of the names on the first four pages and underline in red any name that we feel may be in violation of the rules noted earlier. If we think that a name may be confusing, then others may also. The searcher's main job is to alert the incorporator to the possibility that there may be a potential conflict. The incorporator should also review the report for additional conflicts based on his knowledge of the activities of the new business.

There does exist a whole series of "laudatory" terms used for corporate names. This list includes the words; holdings, industries, resources, manufacturing, construction, enterprises, investments, management, consulting, etc. These names will become your single biggest problem as you never know what the nature of work of these corporations will be, however, if the name is not identical to an existing name or the abbreviated version of an existing name, the name may be used.

For this reason you will find a long list of companies that use the same word in front of each of the above. They all exist in harmony as they are all considered to be without defined meaning, and therefore the owners are charged with the responsibility of insuring that they do not infringe on the rights of any of the others with the same list of laudatory terms.

The term NUANS stands for Newly Updated Automated Name Search.