- You do not apply for common law trademark rights — they build up automatically through actual, continuous use of a name or logo in connection with your goods or services.
- Because there is no certificate or registry entry to point to, enforcing common law trademark rights means relying on the tort of passing off.
Many Ontario business owners assume that if they have not registered a trademark, they have no legal protection over their brand name at all. That is not correct. Canadian law recognizes common law trademark rights — protection built simply through actually using a name, logo, or slogan in the marketplace, without ever filing an application with the Canadian Intellectual Property Office (CIPO).
Common law rights are real, but they are also narrower and harder to enforce than registered rights. Understanding the difference helps you decide whether relying on common law protection is good enough for your business, or whether it is time to register.
This article explains how unregistered trademark rights arise, how they are enforced, and what registration adds on top of them.
How Common Law Trademark Rights Arise
You do not apply for common law trademark rights — they build up automatically through actual, continuous use of a name or logo in connection with your goods or services. The more consistently and widely you use a mark in a specific geographic area, the stronger your common law claim to it becomes there.
This is fundamentally different from registration, which is a government process that grants a defined bundle of statutory rights across the whole country once approved.
Passing Off: How Unregistered Rights Are Enforced
Because there is no certificate or registry entry to point to, enforcing common law trademark rights means relying on the tort of passing off. In general terms, a business asserting passing off needs to show three things:
- It has built up goodwill or reputation attached to its name, logo, or get-up in a specific market.
- A competitor has misrepresented its goods or services in a way likely to confuse the public into thinking there is a connection between the two businesses.
- That confusion has caused, or is likely to cause, damage to the first business's goodwill.
This is a fact-heavy test. Proving it usually requires evidence of how long you have used the mark, how widely known it is, and concrete examples of actual or likely confusion — which is naturally harder to gather than pointing to a registration certificate.
What Common Law Rights Give You — and What They Don't
| Common Law (Unregistered) | Registered Trademark | |
|---|---|---|
| Geographic scope | Limited to where you have actually built a reputation | Generally nationwide, once granted |
| How you prove your rights | Evidence of use, reputation, and confusion | The registration itself |
| Enforcement route | Passing off (common law tort) | Statutory infringement action, plus passing off |
| Notice to others searching the market | Not centrally searchable | Publicly searchable through CIPO's database |
| Cost to establish | No filing cost, but real cost to gather evidence later | Government filing fee, refreshed at renewal |
When Relying on Common Law Protection Makes Sense
- You operate in a small, defined local market with no near-term plans to expand.
- You are still testing a name or brand and are not yet ready to commit to the registration process.
- You want interim protection while a registration application is being prepared or is pending.
Even in these situations, common law protection is best treated as a starting point, not a permanent strategy, especially if the brand becomes valuable enough that a competitor might want to use something similar.
Moving From Common Law to Registered Protection
- Search first. A trademark clearance search is different from a corporate name search — clearing a name search for incorporation purposes does not mean your trademark is free of conflicts, so search the trademark register specifically before you invest further in the brand.
- File your application with CIPO. As of CIPO's fee schedule effective January 1, 2026, filing online costs $491.06 for the first class of goods or services and $149.04 for each additional class — verify the current amounts before filing, since government fees are adjusted periodically.
- Respond to any examination issues CIPO raises about distinctiveness or conflicting marks.
- Maintain the registration once granted, including renewing it on schedule.
Frequently asked questions
Can I stop a competitor from using a similar name if I never registered mine?
Possibly, through a passing-off claim, but you will need to prove your reputation, the competitor's misrepresentation, and resulting damage — all without the benefit of a registration certificate to rely on. It is a harder and more expensive road than enforcing a registered mark.
Does using the ™ symbol give me any legal rights?
The ™ symbol itself does not create legal rights; it simply signals that you are claiming a mark as a trademark. Your actual protection still comes from either registration or common law use, not from the symbol.
If I have used my name for years, am I automatically protected across all of Canada?
No. Common law rights are tied to the geographic area where you have actually built up a reputation, which may be far narrower than the whole country. Registration is generally what gets you nationwide statutory rights.
Is it too late to register a trademark I have already been using for a while?
Generally no — prior use does not usually prevent you from registering, and in some respects it can support your application. Speak with a lawyer promptly, though, since delay creates more opportunity for a conflicting mark to emerge in the meantime.
This is a corporate question
Start a file online — flat, published fees, reviewed by a licensed Ontario lawyer before a dollar is owed.