The name under which you run your business is very important for recognition and findability in the market.
The name under which you run your business is very important for recognition and findability in the market.
A trade name is the name under which your business participates in commerce. A dispute may affect discoverability, advertising, customer contact and investment in a new name. Guldemond Advocaten assists businesses with name selection, searches and trade name proceedings. We connect these issues with trade mark law, domain names and our broader intellectual property practice.
Trade name protection arises through actual use as a business name. An entry in the Trade Register or registration of a domain name alone is not necessarily sufficient. How the name is used on the website, invoices, business premises and in communications may matter.
Record when you started using the name and for which activities. Older invoices, advertisements and website versions may provide important evidence in a dispute. Also investigate whether another business uses an earlier relevant name. The technical availability of a name for registration does not mean it is legally free to use.
Article 5 of the Dutch Trade Names Act protects against a later trade name differing only slightly from a lawfully used earlier name, to the extent that this creates a likelihood of confusion between the businesses among the public. The names, nature of the businesses and their locations are among the factors assessed. The specific circumstances remain decisive.
The issue is not confined to identical names. Presentation, target audience, activities and geographical reputation may also matter. Actual confusion may be useful evidence but is not always required. Conversely, one misdirected email does not automatically establish a prohibited trade name.
A descriptive name may clarify what your business does, but does not automatically create a monopoly over common words. In Dairy Partners, Dutch Supreme Court, 19 February 2021, the Court clarified that distinctiveness is not a separate requirement for protection under the Trade Names Act. A likelihood of confusion may justify protection for descriptive trade names too.
Other businesses’ need to use descriptive words nevertheless matters to the assessment. The whole must therefore be considered, including additions and presentation. A descriptive name is not automatically unprotected, but neither does it confer unlimited control over every use of those words.
A website is generally accessible everywhere, but that does not automatically make trade name protection nationwide. Actual reach, reputation and the market targeted by the businesses are relevant. The assessment may differ for a local service provider and a business demonstrably serving customers nationally.
Preserve information about advertising, customer reach and market activities. We assess online use alongside the physical establishment and the other party’s activities. Cross-border disputes also require assessment of applicable law and jurisdiction; see international commercial disputes.
A trade name identifies the business, while a trade mark distinguishes products or services. The same name may perform both functions, but the protection requirements and scope differ. A trade name search therefore does not replace a trade mark search. Combining use with trade mark registration may sometimes be appropriate.
A domain name is not automatically a trade name either, although use of the website may be relevant. Where only a domain name is challenged, another legal basis or dispute procedure may be needed. We also investigate whether the use affects an earlier trade mark registration and whether transfer, modification or a coexistence arrangement offers a workable solution.
First identify earlier use, activities and specific confusion. The requested measure must then correspond to the infringement, for example changing the trade name or ending particular communications. A demand to prohibit every use of a word may exceed what the legal position justifies.
Urgent cases may require interim relief proceedings. A settlement may address spelling, region, activities, domain names, search advertisements and a transition period. Consider feasibility: a name change often also affects suppliers, registers and existing customers. We document such arrangements through our commercial contracts practice.
No. Registration does not override earlier trade name or trade mark rights. Investigate actual use and relevant registrations before investing in a name.
Not necessarily. The law requires an assessment of likely confusion in the specific circumstances. Location matters, but so do market reach and reputation.
We assist with searches before launch and disputes over existing names. Contact us with examples of use, the first-use date and any correspondence. Online publications and platform use may also matter to the chosen solution.
