Trade Names

Few formal requirements apply to trade names. However, a trade name must not cause confusion with an existing trade name or trade mark of another business. 

It is important that a trade name can be written down and pronounced so that it is recognisable to the public.

A trade name is therefore identifiable both visually and aurally. Trade names are not concerned with design or the use of colour. 

Descriptive trade names may also be used (unlike descriptive trade marks). However, it must be borne in mind that a trade name may also conflict with an earlier trade mark right. The use of a trade name must not infringe an existing trade mark.

A trade name must not be misleading

Descriptive trade names may therefore be used. This does not mean, however, that all trade names are permitted. You must not create a false impression as to who owns your business. Nor may the trade name be misleading as to the legal form of the business.

When is there a business?

A trade name represents the business behind it. But when is there a business? There is no statutory definition. In general, a business exists where a person participates in economic activity on an ongoing basis and presents themselves to the public under a particular name.

Actual use of a trade name

Finally, it is important that your business actually uses the trade name. A requirement is therefore that business is genuinely conducted under that trade name. 

When is a trade name actually used? For example, where it appears on letterhead, in advertisements, brochures, packaging and other printed materials. 

It is important to bear in mind that registering your trade name with the Netherlands Chamber of Commerce (KVK) is not sufficient in itself to establish a claim to that trade name. 

A good trade name helps position your business. It may also make it easier to assert a claim to a domain name. Our trade name lawyers will be pleased to advise you.

When is there trade name infringement?

As in trade mark law, the likelihood of confusion is an important criterion in trade name law. The question is whether the relevant public may confuse your business with another business, for example because they believe there is a connection between them. 

The likelihood of confusion is assessed in light of a number of criteria, including:

  • The geographical area in which the trade name is used;
  • The market in which the business operates;
  • The nature of the business; and
  • The degree of distinctive character.

Earlier trade names take priority

Under the Trade Names Act, an earlier trade name takes priority over a later trade name. Other factors also play a role in the use of a trade name. For example, a trade name must not infringe a trade mark. Finally, direct competition between you and another business is not required for trade name infringement to occur.

Searching for existing trade names and trade marks

Before you start using a trade name, it is advisable to investigate whether it infringes earlier rights, such as earlier trade names or existing trade marks. If a trade name is too similar to a name or trade mark already in use, this may cause confusion among the public and lead to a legal dispute. 

Our lawyers can investigate whether a proposed trade name may conflict with an earlier trade name or a registered trade mark. Having this assessed in advance can help prevent you from later being forced to change your trade name or become involved in legal proceedings.

Would you like to know more about trade name law?

Are you unsure whether a trade name may be used, or is there a dispute concerning a trade name? Our lawyers advise on trade name law and trade mark law, assess whether a trade name conflicts with earlier rights, and act in cases of trade name infringement.

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FREQUENTLY ASKED QUESTIONS 
ABOUT TRADE NAME LAW

When do I acquire trade name rights?

Trade name rights arise as soon as you actually use a name for your business and present your business to the public under that name. Registration with the Netherlands Chamber of Commerce alone is not sufficient.

Can I use a trade name that is already registered with the Netherlands Chamber of Commerce?

Not always. The Netherlands Chamber of Commerce does not assess whether a trade name conflicts with an earlier trade name or trade mark. Even if a name is registered with the Chamber of Commerce, its use may still be unlawful.

Can a trade name be descriptive?

Yes. Descriptive trade names are permitted. However, such names are often weaker and generally enjoy less protection than more distinctive trade names.

Can a trade name also conflict with a trade mark?

Yes. Use of a trade name may also infringe an earlier trade mark. It is therefore advisable to investigate in advance whether a trade name conflicts with existing trade marks or trade names.

Do I need to register my trade name to obtain protection?

No. Trade name rights arise through actual use of the name. Registration with the Netherlands Chamber of Commerce can, however, help demonstrate when use of the trade name began.

What can I do if another business uses my trade name?

If another business uses a trade name that is too similar to yours, this may constitute trade name infringement. In that case, you can demand that the other party cease using the name and, where appropriate, claim damages.

What should I do if someone objects to my trade name?

If another business claims that your trade name infringes its rights, it is advisable to seek legal advice. It must then be assessed whether there is in fact a likelihood of confusion and whether the trade name conflicts with an earlier trade name or trade mark.

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