Family name as a trade name: is it wise?
Family name as a trade name: is it wise?
Entrepreneurs can use their family name as a trade name. A company name hardly needs to be distinctive to qualify as a trade name. Once the public perceives the name as the name of the business, it can be protected under trade name law. Using a family name can be risky and result in a business owner being in a weaker position in a legal dispute. Below I discuss some points of interest.
Make sure the trade name has not been used before
Before you can register your family name as a trade name, it is advisable to check whether your trade name has been previously registered with the Chamber of Commerce. It is also important to check if there is already a domain name or trademark registered that is the same or similar to your family name. You can check this with the SIDN and with the trademark register of the Benelux Office for Intellectual Property (BOIP). It is advisable to avoid using the same or a (very) similar family name as a trade name as much as possible.
Avoid descriptive language
In addition, significance comes to whether the family name is common in an industry and descriptive of the services being offered. In those cases, your trade name is more likely to be allowed to be used by another party. For example, consider using the name "Jansen autodealer B.V." for a business that sells cars to individuals. Such a name will be entitled to less protection. In this connection, see also the judgment of the District Court Zwolle-Lelystad of May 9, 2012 in a case between Smit Telecom Bodegraven and Smit Telecom Urk, in which the District Court considered that 'Smit' is a frequently occurring family name and the term 'Telecom' is largely descriptive in nature.*
Uses in the industry
The extent to which the use of a family name is common in the sector is also an important viewpoint for the extent to which a trade name is entitled to protection. The Amsterdam Court of Appeal ruled in 2001 in a conflict between 'Bartels Advocaten' and 'Bartels Advocaten' that it is not unusual for law firms to use a family name, which means that its use will not immediately cause confusion.
Conclusion
As an entrepreneur you want to give your company as much authenticity as possible and a family name can be very suitable for that purpose. A family name can be protected as a trade name, but it is advisable to first assess whether the family name is common in the industry and avoid descriptive language. Customs and habits in the industry may also be relevant.
Are you in doubt about using a family name as a trade name or do you have another question about trade name law? If so, please contact Melvin van Tiel.
*Rb. Zwolle-Lelystad May 9, 2012, IEF 9848.
*Hof Amsterdam October 11, 2001, ECLI:NL:GHAMS:2001:AK4586.
