The trade name is the name under which you actually run your business. It may be the company’s statutory name, but more often it is the name on the shopfront, the website and the invoices. The right to it arises through use.
Legal basis
The Trade Names Act governs the field. Article 5 prohibits carrying a trade name that, given the nature and the location of both businesses, is liable to cause confusion with a name another party lawfully used earlier. Article 5a prohibits a trade name that contains another party’s trade mark where confusion is to be feared. Registration in the commercial register creates no right in itself: first use prevails. Article 6 provides a fast petition procedure before the subdistrict court in which the judge can order the name to be changed.
How it works in practice
The assessment is factual. The more descriptive the name, the less protection it attracts: a business calling itself Southern Painters can hardly stop others using those words. The area of operation counts too; two identically named hairdressers in different provinces are less likely to cause confusion than two webshops serving the whole country. Use of a name in a domain name can amount to trade name use, provided a business is actually run under it.
Where it goes wrong
Three points recur. First, proof of earlier use, which often has to be produced years later and is then missing. Second, the assumption that a chamber of commerce registration confers protection. Third, sitting still: a party that operates alongside a similar name for years and only then objects finds the court less receptive.
Related terms
Trade name law connects to trade mark law, to the domain name dispute and to the notice and takedown procedure.
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