Protecting a trade name: trade name law

Every business trades under what is known as a trade name. A trade name is used by a company to present itself to the outside world. The trade name used is usually thought of by the founder(s) of the company when they go to register the company with the Chamber of Commerce. However, it is not true that the name under which the business is registered with the Chamber of Commerce is automatically the trade name. The trade name is the name by which a company is known to the public. Therefore, it does not have to be the name under which the company is registered with the Chamber of Commerce.

Trade name is automatically protected

As a business owner, you want your trade name to stick well with the public. That is why you come up with a trade name that is as original and creative as possible. Over time, your trade name becomes more and more familiar, for example, because you advertise under it and use it on your website and invoices. Now what if you find out that another company has started trading under the same name or a similar name? Now this company can profit from your creatively conceived trade name and the name recognition this name has acquired without having done anything for it. What can you do about this?

Acting against competitor's trade name

Trade name law can provide protection against this. By virtue of the Trade Name Act Indeed, it is forbidden to use a trade name already used by another “lawfully conducted”. However, a few requirements must be met before the court can rule that the banned trade name must be changed.

There must actually be a trade name

Such a request can only be successful if the trade name is “carried on.” In other words, what matters is that the name is actually used on invoices, for example. It is not the name under which the company is registered. It can happen that a company is registered under the name “A”, but its invoices and website mention the name “B”. Then the name “B” is actually used and that is the trade name.

Likelihood of confusion required when protecting trade name

To successfully invoke the protection of the Trade Name Act, there must be a likelihood of confusion. This means that the use of the trade name by another party may cause confusion among the public. It is not required that confusion actually occurs.

Risk of confusion of trade name by type of business

When assessing likelihood of confusion, all the circumstances of the case are taken into account. The main factors considered are the nature of the enterprise, and the environment in which the enterprise operates. What matters, therefore, is whether the companies serve the same public. After all, if two roofing specialists in the Rotterdam area are both called “DoeMaarDak”, this could cause confusion.

Risk of confusion due to logo or other visual factors

In addition, visual factors, such as the colors and font of the logo and website, can play a major role in determining whether confusion can arise among the public. Because please note; the issue is not whether the danger has actually materialized, but whether confusion is likely to occur.

Lawyer to protect trade name

There are no ready-made rules that always produce the same result, but all the circumstances of a specific situation matter. Do you doubt whether you are in violation of the Trade Name Act? Or are you dealing with someone using a name that is very similar to that of your company? Then it is wise to seek legal advice. Lexys Lawyers can help you determine whether there is actually a danger of confusion and what the best steps are to protect your trade name. Feel free to contact with us.