Specialized Representatives
Delays
While Marque d'or strives to keep this list as up to date as possible, circumstances out of our control prevent us from guaranteeing delays, especially during summertime. Please contact one of our client service representatives in order to confirm the approximate time frame for your transaction. Thank you. Last update: 21/11/2008 |
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Name Search Description
In order to choose the name search that best suits your particular circumstances, you must be aware of the legal context in each jurisdiction, the government search deficiencies and the potential liability of the jurist. In most cases, we recommend our complete search because it contains the cases of confusion. The Enterprise Registrar recognizes this search report. Our complete search starts with a preliminary search to identify the obvious cases of confusion before proceeding ahead. Our report is available online or in print for an additional fee. Our prices vary depending on the jurisdiction and the scope of the search that you choose. A complete search report carries the least risk that you will choose a name that does not comply with prior rights of past names or of names already in use. Sometimes one of our summary, economic or direct searches will prove to be sufficient. Our experienced representatives will be happy to assist you in choosing the appropriate search for you. LEGAL CONTEXTName search practices have evolved and clients’ needs have become more specific since the enactment of An Act respecting the legal publicity of sole proprietorships, partnerships and legal persons, R.S.Q., c. P-45 (“ALP”), the implementation of the Registre des entreprises du Québec (“REQ”) and case law that supports the conclusion that a complete search is necessary and appropriate. The ALP has practically eliminated the prior control of corporate names. Right now, prior control is limited to verifying whether the proposed corporate name is identical to an existing name or a reserved name and to considering some other objective criteria. Other types of confusion are not considered before a corporate name is granted. The REQ publicizes the legal name of a business as well as the other names or trade-marks that it uses for its products and services. This name declaration has the same value as an official deed that can be set up against third parties. Moreover, the publicity of the names covers the whole province. The government’s decision to abandon prior control of corporate names required the implementation of a new control mechanism to apply after a name is granted. The Legislator constituted a new administrative tribunal coming under the Enterprise Registrar and having jurisdiction over disputes regarding the use of names by businesses and groups in Quebec. The Tribunal thus has the power to order a business to change the name it uses to carry on business, except if that name is the one under which it was incorporated in another jurisdiction. Alternately, that Tribunal may order a business to cease its use of an illegal name. The Enterprise Registrar also has the authority to order a provincial company to change its corporate name if it fails to comply with the applicable legislation. At the federal level, the Director of Corporations Canada continues to exercise prior control over proposed corporate names. Federal corporations doing business in Quebec are also subject to the ALP. They must ensure that the names they use in Quebec comply with the legal requirements of the province. The responsibility to ensure that a name used in Quebec is unique lies with any person subject to the ALP and, therefore, with any jurist representing such person. A business subject to this statute may not declare on the REQ nor use in Quebec a name that causes confusion with the name of another business or that may mislead third parties. Consequently, a jurist is liable for the legality of the corporate name, the trade name or any other name indicated in the declarations that he or she prepares for a registrant. JURIST LIABILITYIt seems improbable that a jurist may waive in advance his or her professional liability and advise his or her clients to adopt corporate names without a complete search and to waive their rights to claim professional liability. However, should clients knowingly insist on adopting illegal names, assume all the risks pertaining to the use of those illegal names and as well waive the liability of the jurist, those clients would then be considered to have assumed all future damages that could result from their choice of name. GOVERNMENT SEARCH DEFICIENCIESGovernment searches, whether provincial or federal, are incomplete and further searching is necessary. In QuebecThe search report required by the Enterprise Registrar essentially contains the names entered on the REQ. This report is incomplete since registration on the REQ by businesses not incorporated by the Enterprise Registrar is done on a voluntary basis (but subject to penalties in case of failure to do so) and since there is no exchange of information between the government of Quebec and the other governments of Canada regarding the automatic or mandatory registration of names and trade-marks on the REQ. Here are the main deficiencies of the REQ:
At the Federal LevelThe Enterprise Registrar does not give the federal government any information pertaining to Quebec non-profit corporations and entities. This omission has a serious impact on the Nuans™* report used by the federal government to make decisions on the availability of corporate names for federal corporations doing business in Quebec. The Nuans™* report is thus deprived of an important source of information, because the REQ report contains the following:
Benefits of the Complete Search
Content of the Complete SearchOur complete search report is divided in two parts:To view a complete search report click on the links below:Our Preliminary Search ReportThis preliminary report lists names registered with various governments in Canada, names in use in Canada and domain names registered in Canada and the United States. It is preceded by a summary highlighting the names that may present legal or administrative difficulties. Names Registered in Government DatabasesThe extent of this search varies depending on the jurisdiction: in Quebec or at the federal level. At the Federal LevelOur preliminary Nuans™* search identifies business names registered with the provincial governments in Canada, Our search in federal databases casts a wider net than the Nuans™* search because it obtains more occurrences. In QuebecThe search in the REQ database gives the Quebec business and corporate names that are not registered in Nuans™*. Trade-marksOur search in the Canadian trade-mark database is more complete than Nuans™* as it obtains a larger number of occurrences and more information with respect to each registered trade-mark. Names in UseRegistration of a name with a government does not confer legal protection. Courts protect names so long as they are used in the course of doing business in a given territory. Our preliminary search provides an overview of the names used in Canada by consulting the following databases: Telephone directories, Dun & BradstreetTM, ScottTM, CCCTM, CTITM, etc. This search provides information on the extent of the use of a name by indicating where it is used and in what area of business. If a name registered with a government does not appear in the Name in Use Report, this means that there is a chance it is not used in Canada and, consequently, not protected by the courts. Domain NamesThe governments do not list domain names even though they are very important. The choice of a name is often influenced by the availability of a domain name. Our search provides a list of identical or quasi-identical domain names with the following top levels:.com, .net, .org, .biz, .info, .name et .ca GOVERNMENT SEARCH AND RESERVATIONIn QuebecIn Quebec, the Enterprise Registrar accepts our preliminary search report, which comes with a favourable report of conformity stating the conditions for the grant of a proposed name. At the Federal levelAt the federal level, the Director still exercises prior control over proposed corporate names based on the Nuans™* report and our favourable report of availability. In fact, the Director in 99.99% of cases accepts our favourable report of availability of a proposed name. Elsewhere in CanadaMost of the provincial governments require a Nuans™* report, with the exception of Quebec. The requirements for reservation of a name vary from one province to another. For example, in Quebec and Ontario, only identical names are controlled whereas in other jurisdictions confusion is the criteria for reserving a name and putting in on the articles. OUR SEARCH REPORT RECOGNIZED BY THE ENTERPRISE REGISTRARFor the first time since 1868, the Quebec government accepts search reports prepared by a private firm. Yes, the Enterprise Registrar now accepts the preliminary search reports and favourable reports of availability prepared by Marque d’orTM in order to obtain a certificate of incorporation, amendment, amalgamation, etc. In a letter addressed to our president on December 21, 2001, the assistant director, Ms. Klara de Pokomandy, confirmed the following: [translation]
Consequently, the Enterprise Registrar accepts that our search reports be filed at his office and that they have the same legal value as those prepared by his office, all of which at no extra cost for reserving a corporate name. Saving Time and MoneyThat decision by the Enterprise Registrar means our clients can save time and money as well as officially recognizing the reports that we prepare. Our preliminary search report and our favourable report of availability are available online, usually within two hours or less, whereas the search report done by the Enterprise Registrar usually takes between 6 to 9 days with the exception of priority service. This means you save time on the execution of the search. Since our production delays are short, it is usually not necessary to reserve the name. Moreover, our price is reduced by $37 because the government fees for the reservation do not apply. Finally, you can save an additional $13 if your search is sent to you electronically, simply because we save on the cost of paper and preparation of the report as well as the delivery. Should you wish to, you can continue with the old procedure and thus obtain a search report as well as the reservation of the proposed name. However, save for some exceptional situations, we do not believe that it is necessary to pay the prescribed fees and accept the government delays. The probability that an identical corporate name be registered on the REQ within the month following our report is really minimal. Moreover, even when reserved, a name is not protected against trade names that may be registered on the REQ after the reservation. Legal ContextControl over corporate names of Quebec companies must be contemplated before and after a name is granted. The Enterprise Registrar must ensure that the name indicated in the articles is not identical to another name used in Quebec. A Priori ControlArticles of incorporation must be filed with a search report of the names used and entered in the REQ (section 123.14(2.1) of the Quebec Companies Act , R.S.Q., c. C-38 (“QCA”)). Section 123.160 of the QCA stipulates that the Enterprise Registrar must refuse to issue the appropriate certificate if the articles include a corporate name that does not comply with section 9.1(1) to (6) or (8) of the QCA. Only paragraph 8 of section 9.1 of the QCA is relevant with respect to the search report required with the filing of articles. This paragraph stipulates that the “company’s name must not be identical to a name used by another person, partnership or group in Québec, taking into account, in particular, the criteria determined by regulation.” The ultimate purpose of the search report is thus to allow the Enterprise Registrar to check if there is an identical name used in Quebec. There is a great difference between the legality of a name indicated in the articles and the search report attempting to establish this legality. Paragraph 8 of section 9.1 of the QCA provides that the name must not be identical to any other name used in Quebec, whereas the search report prepared by the Enterprise Registrar is solely based on the names used and registered (s. 9.2 of the QCA), which is a lot more restrictive. A more complete search report is therefore useful to find out all the names used in Quebec and not only those entered in the REQ. A Posteriori ControlImmediately after a name is granted, a registrant will require additional information to that contained in the search report of the Enterprise Registrar. The registrant must check if there are other names used in Quebec that may lead to confusion in the mind of the public because any interested party may apply to the Enterprise Registrar for an order that a company change its name if it does not comply with section 9.1 of the QCA, more specifically paragraphs 7 and 9. These paragraphs state that a company’s name must neither falsely suggest that the company is related to another person nor lead to confusion with another. The regulations prescribe criteria to apply to determine the extent of this protection. Thus, the search report should allow a registrant to find out all the cases of confusion and not merely those where the names are identical. The search report should therefore include all the names used in Quebec that may lead to confusion with the proposed name, whether or not they are entered in the REQ. While trade-marks registered in Canada are presumed to be used everywhere in Canada, a significant number of them are not entered in the REQ. Consequently, a corporate name accepted by the Enterprise Registrar based on its own search report could be non compliant with the applicable legislation because not all corporate names and trade-marks used in Quebec or presumed to be used in Quebec are entered in the REQ. Our Search Report Is SufficientIn view of the above, any registrant or his or her representative should be able to get a complete and legally compliant search report so as to obtain the appropriate certificate and have the relevant information to avoid having to change its name after it is granted. Search Report Prepared by the RegistrantThe legislator did not grant the Enterprise Registrar the exclusive right to do name searches and prepare search reports. The second paragraph of section 9.2 of the QCA specifies that the Enterprise Registrar may do a search and prepare a report of the names used and registered. Section 123.14(2.1) of the QCA also refers to a search report indicating the names used and registered but does not specify who must prepare it. There are no provisions in the regulations prescribing fees for the report prepared by the registrant or his or her representative. Names Used in QuebecOur complete search report lists all the names used by businesses in Quebec, not only those appearing on the REQ (section 9.1(8) of the QCA). It provides an overview not only of registered names but also lists the names used in Quebec, which are obtained through a search in the telephone directories and other computerized registers. Trade-marks, which are presumed to be used everywhere in Canada, appear in a separate section of our report. Business ActivitiesOur search report also supplies information regarding the activities of a business, which is useful to assess the risks of confusion. Indeed, a corporate name identical to an existing business name may not create confusion if they are used in different sectors. According to section 5 of the Regulation respecting the corporate names of companies governed by Part IA of the Companies Act, if a corporate name is likely to suggest a relationship or lead to confusion with another name or if it is identical to another name, the prominence of both shall be taken into account as well as the likelihood of competition between them based on the objects or activities of the businesses concerned. The search report prepared by the Enterprise Registrar does not indicate the activities of the registered businesses. Our search report supplies this information, which is declared in the register and available in telephone directories. Names Leading to Confusion
Federal CorporationsNumerous federal corporations doing business in Quebec are not registered on the REQ. Our search report covers all federal corporations in Canada and provides the address of their head office, especially for those established in Quebec. Name ReservationIt is not mandatory to reserve the name and file the reservation with the articles. Section 123.14(2.1) of the QCA states that only a search report of the names used in Quebec and appearing on the register is required. One can even wonder about the kind of protection a court would give to a reserved name given that section 14 of the ALP stipulates that no entitlement to a name is acquired by the sole fact of registration. At the administrative level, we understand that reserved names are protected against ulterior registration of an identical company name the same way as any other name registered on the REQ. However, trade names are not subject to prior control and may be registered on the REQ although they are identical to a reserved name. Preliminary SearchMarque d’orTM will prepare a summary report of the results of a complete, economic, summary, direct or registration search. This summary contains information pertaining to the proposed name as well as names that may cause administrative or legal problems. When you ask us to do an availability search for a proposed name and we determine that there is a possibility that the name could be refused, either by the Enterprise Registrar or by the Director, we send you our search report with a summary listing the potentially confusing names and requesting additional information. Unless otherwise instructed, we suspend our search and invoice you for the work done. Printed or Electronic ReportOur search report may be sent to you by e-mail, messenger or by regular mail. We suggest that you request our search reports by e-mail as they can be ready within two hours and you will save $13 on preparation and printing fees. This $13 fee is charged if you wish a printed report delivered by messenger in downtown Montreal and or regular mail elsewhere. At the federal level, you can also receive your search report and favourable report of availability by e-mail or have the printed report sent to you by regular mail. Our Search PricesQuebec without ReservationThese are our most popular searches because of their fast execution and their reduced prices. It is no longer necessary to reserve a corporate name since the Enterprise Registrar accepts our preliminary search reports with a favourable report of conformity that states the conditions for the granting of a proposed name. Click on the (?) for more details about the searches or the databases. Quebec with ReservationThis is the search of choice when there is a delay between the filing of the articles and the preparation of the search report. Click on the (?) for more details about the searches or the databases. FederalAt the federal level, the Director still exercises prior control over proposed corporate names based on the Nuans™* report and our favourable report of availability. As a matter of fact, the Director in 99.99% of cases accepts our favourable report of availability of a proposed name. Business Name SearchThis search is useful for trade names. It covers all names registered and used in Quebec as well as the main domain names in Canada and the United States. It is recommended for trade names and for every registrant that does not need a search report from the Enterprise Registrar. Click on the (?) for more details about the searches or the databases. Order Now
QuestionnairesThe questionnaire that follows helps you to obtain from your clients all the required information * Nuans is a registred Trademark owned by Industry Canada. |
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The search is carried out on registered names and names in use within Quebec. In addition, the primary domain names used in Canada and the United-states are also searched.
www.netco.net
www.onscope.com
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