The TeleMark

The official publication dealing with Canadian corporate and commercial law

May 22 1996

Volume 3 -- Number 6


The POLYSECURTM Service enables you to fulfill your duties in the event of financing secured by movable property.




Legal counsel's inherent duties

When you are called upon to act as legal counsel on behalf of a creditor with a view to obtaining financing of a commercial nature, you are subject to what is known in banking circles as a due diligence standard of care. Consequently, you are required to take all reasonable steps in order to obtain, and to verify the accuracy of, any information which may have a material impact on the granting or on the conditions of the financing.


Not only is this duty grounded in established business practices, but it is also based on section 3.02.04 of the Code of Ethics of Advocates. Hence, you must disclose to your client the nature and scope of the problem submitted to you as well as the risks inherent in the solutions recommended. Any failure to comply with the due diligence standard of care will theretore result in an act of professional negligence whereby you will risk incurring liability. The PolysecurTM Service is the best way for you to meet your obligation and to safeguard against any eventual claim.




The POLYSECURTM Service is subdivided into 7 distinct "OPTITM" segments, which may be used separately in order to comply with the requirements of each particular tinancing. These sections enable legal counsel to ensure that:

  • the movable property guaranteed by a security
    is not encumbered by any movable hyothec

TM   segment...$19, $29 or $39

  • the debtor requesting the financing is not
    subject to any civil or criminal proceeding

TM segment ...$30;


  • machinery or inventory located in the Province of Quebec
    and guaranteed by a security are not subject to any notice of  intention pursuant to section 427 of th Bank Act.

TM segment ...$39

  • the debtor requesting the financing is not subject to any tax liability of any nature.

          (consent required)               OptitaxTM segment...$25;and


  • the debtor requesting the financing is not subject to any proceeding pursuant to the Bankruptcy and Insolvency Act or to the companies Creditors Arrangement Act.

                                            OptibankruptcyTM segment...$47 or $64;

  • the debtor requesting the financing is not subject to any environmental liability.

                                                   OptienviroTM segment...$25;and

  • the debtor requesting the financing has a credit history and a commercial credit rating commensurate with his, her or its obligations.

                                                       OpticreditTM segment...$30.


THE INTERNET and trade-mark searches:


The globalization of markets now requires search houses ottering trade-mark services to demonstrate their innovative spirit in order to provide a service of superior quality which takes into account all eventualities.

In this respect, the use of the Internet as an intormation source leads to very convincing results, which tar exceed expectations. Nothing beats a concrete example to illustrate the success of this innovative strategy:


Trade-mark being searched: PINTAL *
Field of activity: Manufacturing of clothes


A tew traditional search stages:

  1. The Canadian Trade-marks Register: an identical name (PINTAL) but a ditterent tield of activities  ... the search continues
  2. Other government registers: (GOTM search) no signiticant occurrence  ...the search continues
  3. Non-governmental databases and registers: (IPSOTM search) no signiticant occurrence  ...the search continues
  4. Distinctiveness search: no problem  ...the search continues

Where others stop,  Marque d'Or goes further!

Internet search

  1. Search engine: The exact term (PINTAL) exists on the network   ... the search continues
  2. We explore the sites where the term is used and BINGO!!! PINTAL is an Italian business carrying on the exact same activities!

In the event where use of the trade-mark being searched is contemplated on an international scale, our search has enabled us to identity a potential problem and perhaps to safeguard its user from potentially serious liability.

*N.B. The trade-mark and the field of activities have been changed in order to preserve the confidentiality of our client and the order of the steps followed has been modified for the purposes of the illustration.


Government turnaround time

Since our last TELEMARKTM, the government turnaround time has remained at a very adequate level of promptness

The tollowing is a list of the turnaround times presently in effect:


Inspector General (provicial)
Name search and reservation 3 days
Incorporation 1 day
Amendment 2 to 5 days
Amalgamation, continuance 2 to 3 weeks
Dissolution (Part IA and III QCA) 1 to 2 weeks
Filing of declaration with the Inspector General 1 to 2 Weeks
Director of Corporations (federal)

All services

48 hours



  Sports talk ...Softball

Marque d'Or's softball team, the Or-la-bi, tied the law firm of Sproule, Castonguay, Pollack (7-7) in this past Tuesday's Montreal Lawyers' Softball League game.

A very close and exciting game. Marque d'Or currently sports a .750 average with a record of 1-0-1.

  Ooh Aah!
     Marque d'Or is on the "war" path!





The following are the conclusions reached in tour decisions handed down by the Inspector General during the month of April:


Applications granted - sufficient confusion


Name used by
the applicant the respondant
3049752 CANADA INC.




Application rejected - insufficient confusion
Name used by
the applicant the respondant
(L.T.C.) INC.



The decision handed down in the VOYAGES ACTION case deals with the apparent link between the applicant "VOYAGES ACTIONS TRAVEL INC." and the respondent "UNIGLOBE VOYAGES ACTION".

The Inspector General ordered the respondent to cease using its name since the words "voyages (travel)" and "action", used in each of the names, in a similar tield of activity, led one to believe that a link existed between the parties even in spite of the adding of the distinctive element Uniglobe, which was a trade-mark of the respondent.

In light of the weakness of the distinctive element "action", the strength of the word UNIGLOBE in the respondent's name and the principle at case law to the effect that a name must be considered as a whole, we express some reservations as to the correctness of this decision.


The PASCAL case

The decision handed down in the PASCAL case will probably set a precedent as it raises a number of very interesting questions of law and of fact:

This decision is justifiable to the extent that it is intended to protect the public interest and the interests of the respondent. However, it does raise one question: despite the tact that a name is not contusing and relates to a ditterent tield of activity, is the use of the tamily name or surname PASCAL torever prohibited in the Province of Quebec? This decision illustrates the reasons why the  provincial legislator ought to emulate its tederal counterpart and place a time limit on the prohibition of use of a name no longer in use (2 years).

To obtain more intormation  regarding the abovementioned  cases, do not hesitate to ask for our  case summaries or to contact our Name Search Department.