A trade name is the name under which your business trades. The trade name is often the same as the name in your company's deed of incorporation, but it can also be different. A business can, for instance, use different trade names for different activities.
As soon as you have a company, you must choose a trade name. This name can be descriptive, as long it does not cause confusion. If you want to protect your trade name, you need to use it in a demonstrable way, e.g. on your headed paper or website. Your customers or potential customers must know you by this name. You are not obliged to register the name in the Chamber of Commerce trade register (NL: Kamer van Koophandel, LU: Chambre de Commerce, BE: Kruispuntbank van Ondernemingen). It is sensible, however, to first check whether the trade name that you want to use already exists.
A trade name may not be confusing or misleading, and must not clash with existing trade names or trademarks.
What does it entail?
If you have a trade name, nobody else in the same sector may use the same or a very similar name, if use thereof could cause confusion. For instance, there would be confusion if your trade name could cause potential customers to mistake your name for that of your competitor, and so perhaps to do business with the competitor while thinking they are buying something from you.
The situation is different if the two companies are active in different sectors or in different geographical areas. In such a situation, the risk of confusion is smaller, even if the names are the same or very similar to each other.
If you have a website and, in theory, provide your services nationwide, it does not automatically follow that your trade name enjoys nationwide protection. If your customers mainly come from the region where your company is located, your trade name is protected in that area.
How long are trade name rights valid?
A trade name is valid for as long as it is demonstrably used. If the trade name is no longer being used, the right to it elapses.
Did you know that...?
- Registering a trade name does not afford any protection if you are not trading.
- A trade name must not be incompatible with an existing trademark/brand.
You cannot use another person's first name and/or surname as a trade name. Unless you take over that person's company.
Trade name law does not grant a monopoly on the name.
The purpose of a trade name is to distinguish one business from another, and to protect against confusion in the area where they are active. The law does not require that trade names have distinctive character, as it does with respect to trademarks.
A trademark is intended to distinguish goods and services. A trademark provides protection against unauthorised use and counterfeiting, and affords a monopoly on the use of the trademark for certain goods and services.
Not confusing or misleading
Trade name legislation in the Netherlands specifies that a trade name must not be confusing or misleading. The name must not wrong-foot the consumer. A trade name is misleading if:
- the name gives the wrong impression about ownership. So, you cannot name a bookshop "Elif Shafak" if she is not involved in the bookshop. Otherwise the impression might be given that the bookshop is owned by Elif Shafak herself, or that she has given permission for her name to be used for the shop;
- the name misrepresents the legal form of the business. You cannot name your company 'Eyewear Specialists Ltd.' if it's a sole proprietorship;
- the name might misinform the public about what the company does. You cannot say that you have a pet shop, for example, if you are selling bicycles.
There is no specific trade name legislation in Belgium and Luxembourg.
Compatible with existing trade names or trademarks
Do not use anyone else's registered trademark (brand) as a trade name. This can cause confusion.
When choosing your trade name, take account of others who are active in the same geographical area. There is a greater chance of confusion with another trade name if the two sound or are written in a similar way, or if their customer base overlaps.
Trade names in the Benelux countries
More information about trade names in Belgium can be found on the FPS Economy, Intellectual Property Department website.
More information about trade names in the Netherlands is available on the Chamber of Commerce website.
More information about trade names in Luxembourg is available on the Registre de Commerce et des Sociétés website.
Would you like some advice?
BOIP is an independent body. This means we cannot provide any personal advice. An external IP professional can advise you on how best to protect your trade name.