Trade name law

Your trade name is the name under which you present your business to the outside world. Trade name law determines who may use that name and what you can do if someone else runs off with it.

At Liaise we regularly see trade name issues arise alongside trade mark and copyright cases. Sometimes it is a competitor who creeps just a little too close to your name. Sometimes it is a former business partner who keeps using the established name after a split. We advise you on your position and take action if it comes to a conflict.

Do you need legal advice straight away? Call 020 675 88 21.

How your trade name is protected

Protection of a trade name arises through use, not through registration. As soon as you actually use a name in the course of trade, you build up rights under the Trade Names Act. Registration with the Chamber of Commerce is administrative and says at most something about since when you have used the name. It does not in itself create any right.

That has a flip side. Because the right rests on use, someone who started using a name earlier can stop you, even if you are properly registered. Whoever used a name first has, in principle, the oldest right.

When someone else infringes

The core of trade name law is the likelihood of confusion. Another party may not use a trade name that is identical to yours or that differs only slightly from it, where this is liable to cause confusion between the businesses among the public. Whether such confusion arises depends on the nature of both businesses, the place where they operate and how strongly the names resemble each other.

The more distinctive your name, the stronger your position. A quirky, invented name enjoys broad protection. Descriptive names, which mainly say what you do, are harder to protect, because your competitors need those same ordinary words too. Courts set stricter requirements for the protection of such names.

Trade name or trade mark?

A trade name and a trade mark are not the same, and in practice they are often confused. Your trade name is the name of your business. A trade mark is a sign with which you distinguish your products or services, and which you register with the Benelux Office for Intellectual Property. Many entrepreneurs in the creative sector use the same name as a trade name and as a trade mark, but the protection comes from two different regimes.

A trade mark registration gives you a stronger and broader weapon than trade name law alone. That is why we often look at both when we assess your name.

What does a trade name lawyer do?

A trade name lawyer assesses how strongly your name is protected and what you can do if another party comes too close. We map out your position, weigh the likelihood of confusion and check straight away whether a trade mark registration would give you a broader weapon. If it comes to a conflict, we send a letter of claim, conduct the proceedings before the subdistrict court or, where necessary, start summary proceedings. Whether you want to take action yourself or have received a letter, we advise you on a realistic route and the costs that go with it.

What you can do in a conflict

If another party uses your name or someone comes too close, you can take action. That often starts with a letter of claim in which you ask the other party to stop the use. If that does not help, the Trade Names Act offers a fast and relatively inexpensive petition procedure before the subdistrict court, in which you can force a name change. If there is urgency, for example around a launch or an event, summary proceedings can provide a quicker solution.

We assist you whether you want to act against infringement yourself or have received a letter claiming that your name resembles someone else’s too closely. Read more about infringement of a trade name.

Choosing or transferring a name safely

Before you start using a new name, it pays to check whether someone else already holds rights to it. A name check with the Chamber of Commerce and the trade mark register catches the most obvious clashes, but gives no certainty about older or regional trade names. We help you make that assessment before you invest in branding and recognition.

A trade name can be transferred, but only together with the business that is run under that name. In an acquisition or restructuring, we make sure the name transfers properly.