Infringement of your trade name
Someone else is using a name that resembles yours, your clients are getting confused, or commissions are ending up with the wrong party. Annoying, and there is something you can do about it.
Do you need legal advice straight away? Call 020 675 88 21.
When is there infringement?
Trade name infringement arises where another party uses a name that is identical to yours, or differs only slightly from it, and confusion between the businesses is therefore to be feared among the public. Two things often determine the outcome. The first is who came first: earlier use wins. The second is how distinctive your name is. A unique name protects more broadly than a name that mainly describes what you do.
How the court assesses the likelihood of confusion
Whether confusion is to be feared is assessed by the court on the basis of three factors which together determine the picture.
- The first is the similarity between the names. The more two names resemble one another in sound, spelling and meaning, the sooner confusion arises.
- The second is the overlap in activities. Where both businesses do the same thing, the chance of confusion is considerable. A record label and a graphic design studio with the same name operate in different markets and barely touch each other’s audience, which makes coexistence more readily possible.
- The third is geographical reach. A locally operating business and a national brand clash less readily than two businesses serving the same region or the same national audience. With online businesses that reach the whole country, this factor weighs heavily, because the audience is the same everywhere.
What you can do
You usually start with a letter of claim asking the other party to cease use within a set period. That is often enough on its own. If nothing happens, the Dutch Trade Names Act provides for an application to the subdistrict court by which a change of name can be enforced. Where there is haste, around a launch, a trade fair or a festival for instance, summary proceedings can produce an injunction more quickly. In some cases you can also claim damages.
A letter of claim or proceedings: what fits your situation?
A letter of claim is the quickest and cheapest step. The letter can go out within a few days, and in many cases the other side backs down after a well-substantiated letter. Where the other party stands firm, an application to the subdistrict court is the next step. That route has deliberately been kept accessible and is therefore relatively cheap, but it does take weeks to months before a decision is handed down. Where you cannot wait that long, because the infringement coincides with a launch or an event at which your name takes centre stage, summary proceedings offer a way forward. That is faster, but also more far-reaching and more costly. Which route is sensible depends on how strong your position is and how much haste there genuinely is. We weigh that up with you in advance.
You have received a letter of claim yourself
If you receive a letter arguing that your name resembles someone else’s too closely, do not respond to it under pressure. Not every claim holds up. We assess whether the other party genuinely has an earlier and stronger right and whether there really is a likelihood of confusion, and determine your response together.
How we help you
We assess your position, estimate your prospects realistically and choose the route that fits your situation, whether that is a firm letter or proceedings. Because we are also at home in trade mark law and in intellectual property more broadly, we look straight away at whether you can deploy other rights alongside trade name law.
