A trademark search tells you what the federal Registrar has recorded. It cannot tell you whether someone else has been using an identical, unregistered mark in the same market for years — because the Act does not require registration to create a right at all.
Key takeaways
SECTION 01 OF 03
Section 26 of the Trademarks Act, R.S.C. 1985, c. T-13, requires a register “kept under the supervision of the Registrar… of transfers, disclaimers, amendments, judgments and orders relating to each registered trademark”, and lists what it must show for every entry: “the date of registration… a summary of the application for registration… particulars of each renewal… particulars of each change of name and address… the names of the goods or services in respect of which the trademark is registered, grouped according to the classes of the Nice Classification”.
A search against that register is therefore a search against a real, defined public record — the date it was filed, who owns it on paper, what it has been renewed against, and which classes of goods or services it actually covers. A mark registered only in the classes a business used ten years ago, and never updated as the product line grew, is a registration that looks solid and protects less than it appears to.
SECTION 02 OF 03
Section 48(1) is unambiguous: “A trademark, whether registered or unregistered, is transferable, and deemed always to have been transferable…”. Parliament wrote the unregistered case into the transfer rule itself, because Canadian trademark law has always protected use-based, common-law rights alongside the registered system. A business that has traded under a name for years without ever filing an application can still hold a real, transferable, enforceable claim to it — one that a search of the federal register will never surface, because there is nothing there to find.
That gap runs in both directions for a buyer: the target’s own unregistered goodwill in a name is a real asset the register search will not show as belonging to it, and a competitor’s unregistered prior use in the same market is a real risk the register search will not show as a threat.
SECTION 03 OF 03
A trade mark registered in classes never used is the classification trap in practice — a registration that existed, was genuine, and simply did not cover what the business actually sold. A trade mark registered to the founder personally is the ownership trap: a clean-looking registration that was never actually an asset of the company being sold at all. Neither defect shows up as a red flag on a routine register printout — both require reading who the registered owner is and what classes the registration actually names, not just confirming that a registration exists.
The formalities that actually transfer intellectual property covers what has to happen once a real, correctly-owned mark is confirmed. Treadstone Law’s guide to trademark search and clearance and its companion on common law trademark rights in Canada cover the mechanics of running the search itself and the unregistered-rights problem in more depth.
No. Section 48(1) of the Trademarks Act states a trademark, whether registered or unregistered, is transferable, because Canadian law protects use-based common-law rights alongside the registered system. A competitor’s unregistered prior use in the same market is a real risk a register search simply cannot surface, because there’s nothing on the register to find.
Only if it’s registered in the right classes. The Register of Trademarks records which Nice Classification classes a mark is registered in, and a registration filed years ago that was never updated as the product line grew can look solid on paper while leaving current offerings unprotected.
Not automatically — that’s the ownership trap. A trademark registered to the founder personally, rather than to the company, looks clean on a register printout but was never actually an asset of the business, so ownership has to be confirmed and, if needed, formally transferred as part of the deal.
Sources
Canadian small-business transaction data is not published anywhere, so most valuations in this country quote an American benchmark. The Deavo–Treadstone Acquisition Index is a daily record of Canadian listings built to replace that: asking-price distributions by province and city are published now, and days on market, departure rates and asking-to-sale spreads follow as the series lengthens. Leave an email and we will tell you as each measure lands.
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