Trade name law
The IP right to trade names is not as well-known as the right to trademarks, but is often just as important, if not more important. In most cases, a company starts with a trade name, which arises as soon as someone actually starts doing business under a certain name.
Protected trade name?
A trade name right arises from the mere fact that the trade name is actually used for a company. Registration is not required. Registration with the Chamber of Commerce does not always mean that a trade name is protected as IP, IP protection arises from the actual use of the trade name.
In intellectual property law generally the “first come, first served” principle applies. A trade name can be of great importance if you would like to take action against a younger trade name but also, for example, against a younger trademark.
When new trademark is registered, we usually do see research focused on existing trademarks, but often existing trade names are overlooked.
On the basis of an older trade name, it is possible to prohibit the use of a younger trade name if there is a ‘likelihood of confusion’. The meaning of this legal concept is that various aspects need to be taken into account, including the degree to which the trade names correspond, the nature of the companies and the business location of both companies. The extent to which the trade name has distinctive character also plays a role in this, as well as whether it is a (partially) descriptive trade name.
Usually, the trade name of a company is also registered as a domain name, or the domain name is also used as a trade name for the company. In order to be entitled to use a domain name, you will have to register a domain name, for example via SIDN. Domain name use that qualifies as trade name use also enjoys IP protection as a trade name.
BVDV has extensive experience in both advising and litigation in the field of trade name and domain name disputes.