FREQUENTLY ASKED QUESTIONS Incorporation vs Trademarking

There's a huge difference between incorporating when you register your company name with the corporate registry as opposed to trademarking when you trademark the name of your business with a trademark office. 

I say a huge difference, as these two things are completely separate. And once and for all, I will dispel the myths around it.


Do You Need to Be Incorporated to Register a Trademark?

No, you don't. In most countries, you can register a trademark as an individual whether you have an incorporated business or not, it does not matter. There are some countries out there that may require you to follow a certain tax regime to qualify before you can apply for a trademark. 

That's not the case in the US. That's not the case in Canada. That's not the case in most countries really. If you have a brand, you can trademark it whether or not that's an incorporated company. You can start the trademarking process as an individual, then form a company later, then you can assign this trademark to the company, or the other way around. 

You can start with a company then pass it on to yourself. It doesn't matter. These two things are completely separate. If you're saying to yourself “well before I trademark this business, I got to incorporate the company”. Don’t. There is no correlation between the two what-so-ever. So that's number one.

Do You Need to Be Trademarked if You Are Incorporated?

The other thing is, the other myth is that a lot of people think, “Well I incorporated this company with this name, the name is protected I don't need a trademark”. That's false. That's entirely not so at best. 

You are protected against somebody else registering a similar company name in the same state or province if you're in Canada. And this is very limited. And at best, again this gives you the right to go after them for infringing on your trade name or your company name, and remedies the ease with which you can enforce that is a million times worse compared to what you can do with a registered trademark. 

What’s the Difference?

So, when you incorporate a company what happens is, it gets registered in the corporate registry. And when you register a trademark, it gets registered in the trademark register. And these two registries even though they are both run by the government, don't talk to each other. 

They're completely separate. When you file for a trademark, the trademarks office does not care if somebody has registered a company with the exact same name in the state or the province or even on the federal level. They don't talk to each other. 

Similarly, when you incorporate a company, the corporate registry is not going to check the trademarks office database to see if somebody else has trademarked a similar brand. So that's another myth. 

And here's the other thing, when you incorporate your business and you register your business name as part of that incorporation, here's what happens, anybody else, yes, they would not be able to register a company with the same name in the same state or the same province.

 But, they can register under a different name and run their service like that. Let's pretend you incorporate a business Rainbow and Lollipops Plumbing Company.

Give Us Examples Andrei!

Okay, somebody else may be in the same state in the same province as ABC Plumbing Inc. Okay, names are not confusing, totally different, right? Has nothing to do with rainbows. But ABC plumbing can then let's say buy a domain name rainbow and lollipops plumbing or plumber' or whatever dot-com, assuming that it's available. Or if it's not available some combination that is available and they can start selling their services from that domain name as ABC plumbers. 

They are not infringing on your company name because they didn't register as Rainbow and Lollipops Plumbers Inc. And again, you might be successful in a lawsuit against them that they are infringing on your company name by having that domain name. But trust me it's gonna be a lot harder compared to enforcing that if you had a trademark.

The last thing is with a lot of business owners selling their products on Amazon. Amazon's got an Amazon brand registry where if you have a registered trademark, you can register that brand with Amazon. 

And if somebody's trying to sell products under that symbol under that same brand or a similar brand, you can go through Amazon channels and say we have our trademark. It's registered in your brand registry and these guys are trying to sell a product with the same name without our authorization. And Amazon is gonna shut them down. 

You can't do the same thing if you only have a company name. Right now, it's not just about interstate commerce, it's not about you physically being present in a lot of different states, in a lot of different provinces, it's about what you can do with this registration. 

And if you are thinking from the brand protection side, incorporation is not gonna give you that. Only trademarking your brand is going to actually protect your brand and allow you the tools to enforce it against anybody who may be dumb enough to infringe it.


Disclaimer: Please note that this post and this video are not and are not intended as legal advice. Your situation may be different from the facts assumed in this post or video. Your reading this post or watching this video does not create a lawyer-client relationship between you and Trademark Factory International Inc., and you should not rely on this post or this video as the only source of information to make important decisions about your intellectual property.