Yes, the Trademarks Act makes an unregistered mark transferable on the same footing as a registered one — the harder question is not whether it can be assigned, but whether the seller actually owns a protectable right in the name to assign in the first place.
Short answer
Yes, the Trademarks Act makes an unregistered mark transferable on the same footing as a registered one — the harder question is not whether it can be assigned, but whether the seller actually owns a protectable right in the name to assign in the first place.
Section 48(1) of the Trademarks Act answers the mechanism question the same way for both kinds of mark: “a trademark, whether registered or unregistered, is transferable, and deemed always to have been transferable, either in connection with or separately from the goodwill of the business” An unregistered mark is not harder to assign than a registered one as a matter of form.
A registered mark carries a register entry establishing a right independent of who actually controls its use. An unregistered mark has no such fallback — its only protection is the tort of passing off, given statutory form by section 7(b): it prohibits directing public attention to a business “in such a way as to cause or be likely to cause confusion in Canada…between his goods, services or business and the goods, services or business of another”. That protection attaches to whoever’s goodwill the public actually associates with the name, as a question of fact, not to whoever happens to have used it first or longest.
Where a name has been used by more than one related but formally unconnected business, with no documented licence or control between them, it may be genuinely unclear which of them, if any, holds a right capable of being sold — the seller has to establish the very thing a buyer needs to be able to rely on. As Treadstone Law’s own guidance on passing off puts it, in a competitor-dispute context, “because there is no registration to point to, proving passing off tends to be more evidence-intensive than a registered-trademark claim”. The same evidentiary gap that makes a passing-off claim harder to win against a competitor makes an unregistered mark harder to clear title to on a sale.
Confirmatory assignments and releases from every entity that has genuinely used the name, disclaiming any competing claim in favour of the buyer, is the practical way to close an ownership question nobody wants to litigate. Filing a fresh application in the buyer’s own name at closing does not resolve any historical ownership dispute, but it starts building a registered right, with the full benefit of s.48(1)’s transferability, from a clean date going forward.
The full ownership dispute this gap can create is worked through in Treadstone Academy’s Case Files: a $680,000 brand allocation resting on fifteen years of parallel, uncoordinated use by two separate companies and the equivalent risk on a mark that was registered, where the registration itself remained assignable even though its use did not.
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