Can I sell a business name that was never registered as a trademark?

A name you have traded under for years has value even if no one ever registered it as a trademark, because customers recognise it. What you can sell is the right you actually hold, and that right is harder to describe than a registration. The Canadian Intellectual Property Office says you do not have to register a trademark, and that using one for a certain length of time may give you rights under common law.

What an unregistered name gives a buyer

A registration gives its owner title, which the Office compares to a deed for real estate. An unregistered name rests on use and reputation, so ownership depends on facts such as how long, where and how the name was used. The Office warns that a dispute over an unregistered mark can become a long, expensive legal battle over who has the right to use it. A buyer will therefore ask what evidence of use you can hand over.

A business name registration is not ownership

Alberta’s registry states that registering a business name does not grant any right of ownership of the name, and that a business name has no legal existence in its own right. Alberta’s rule is one province’s, so check the registry where you operate. Filing a trade name tells a registry you use it; it does not settle who owns the brand.

How the sale is put on paper

With no registration to record, the transfer rests on the purchase agreement, as an assignment of your rights in the name. The CRA notes that a sales agreement may attribute an amount to goodwill. Where a mark is registered, the Office tells owners to formally notify the Registrar of ownership changes; an unregistered name has no such record, so your agreement and your evidence of use carry the weight.

Points to settle in the agreement

• Whether you will use any similar name again, in the same field or another.
• Whether the buyer plans to apply to register the mark after closing, and what help you will give.
• Who holds the domain name and social media accounts that go with the name.