A tradename, or business name, is the name under which a business (for example, a corporation, a partnership or simply an individual) carries on business. A trademark, on the other hand, identifies the wares and/or the services provided by the business. A business can generally only adopt one tradename, but it can use any number of trademarks to identify its products. A tradename can be used as atrademark.

Distinctiveness

In order for a trademark to be considered "distinctive," several requirements must be met:

• the mark and the product are associated; and
• the owner "uses" this association, according to the trademark definition of "use"; and
• this association enables the owner to distinguish its product from those of others.

Confusion

It is illegal to use a trademark that is confusing with another name or mark. To determine the likelihood of confusion, all the surrounding circumstances are considered, including the:

• inherent distinctiveness of the relevant trademark(s) and/or business names
• extent to which they have become known
• length of time in use
• nature of wares, services, business
• nature of the lines of trade (wholesale, retail, etc.)
• degree of resemblance in appearance or sound or in the ideas suggested by two trademarks

When you compare two names or marks with respect to the likelihood of confusion, the question is not whether you would be confused. The question is whether a ordinary person would be confused.

Clearly Descriptive

A trademark cannot be clearly descriptive of the character or quality of the goods or services. For example, you could not trademark the name EXCELLENT PREMIUM QUALITY PAINT for a paint. If you could do so, this would mean no-one else would be able to use "excellent premium quality" to describe their paint. It is a policy of trademark law that a trademark cannot be used to deprive people of the right of use of common words, such as the words "excellent premium quality" in the example given.

Also, a trademark cannot be clearly descriptive of the origin of the goods or services.

Deceptively Misdescriptive

A trademark cannot be registered if it is "deceptively misdescriptive." This means it must be found to both misdescribe the service or ware AND it must be deceptive.