A trade name in the Netherlands – in Dutch handelsnaam” – is the name under which a company is run. In other words, it is the name that is printed on the letterhead and business cards, that is clearly visible on the website on the Internet, that is used to answer the phone, that is displayed on the facade of the office building, etc. In short, it is the name with which the company uses to interact with the outside world.
A right to a trade name arises in Dutch law through its actual use. The decisive factor is not, as is often wrongly assumed, whether the name is formally registered in the Trade Register of the Chamber of Commerce. Merely registering a trade name in the Trade Register does not create any rights, however, it is recommended that the trade name be registered because it helps to provide evidence if any dispute arises. It is possible to register multiple names as trade names in the Trade Register but, if the company does not use these names in its operations, these have little legal value.
The requirement of distinctiveness with a trademark does not exist with trade names. A trade name can and may therefore be descriptive. The downside, however, is that it does play a role in the extent to which there will be confusion between two descriptively similar trade names and therefore the extent to which the name can be protected.
In disputes between two identical trade names, it comes down to the question to what extent there is a likelihood of confusion from the public, considering the nature of the business and its place of establishment. In the past, the place of establishment had more significance as company activities were generally much more limited to regions. Nowadays, the importance of the place of establishment is increasingly fading into the background as with the Internet and increased mobility, companies are more often operating nationwide.
Trade name law does not provide an exclusive right (as is the case with trademark law, for example). Trade name law however does offer protection in that the law stipulates that it is prohibited to use a trade name that is confusing. An older trade name holder can then act against a newer one on that basis.
The Trade Name Act contains further prohibitions, such as:
– A trade name may not be identical or similar to an established trademark.
– A trade name may not mislead the public about the company that is being run. Here you can think of a sole proprietorship that has “BV” or “NV” in its trade name.
In practice, the trade name often has all kinds of interfaces with trademarks, domain names on the Internet but also with Adwords, for example. This creates all sorts of complications that must be carefully monitored.
Finally, there are specific rules when transferring a trade name. Be well advised about this. Under certain circumstances, the use of the predecessor in law can be added to that of the acquiring party, so that the latter retains the “older” trade name.
If your trade name is possibly being infringed, if you are possibly infringing someone else’s trade name or if a transfer, or license is involved (for example in the case of a franchise), please contact MAAK’s lawyers, who will be happy to advise you on this.
ATTORNEYS IN THE NETHERLANDS SPECIALIZED IN Trade Name Law
Are you looking for a Dutch attorney specialized in Trade Name Law in the Netherlands, feel free to contact our colleague Remko Roosjen.