The trade name

The trade name is a crucial element of a company's commercial identity. In Belgium, the trade name is protected to avoid public confusion and to safeguard the reputation and of companies.

Our lawyers specialize in trade name protection. Below we give an overview of how the trade name is protected in Belgium.

What is a trade name?

An trade name is the name under which a company conducts its commercial activities and presents itself to the public. This is the name that customers see on signs, invoices, and other means of communication. The trade name serves to distinguish the commercial business.

The trade name is not the same as the corporate name. The company name, also called corporate name, is the official name of a legal entity as defined in its articles of association and published in the Belgian Official Gazette. This name serves for legal and administrative identification of the company and has no publicity function. The protection of the company name extends throughout Belgium. It is possible for a company to use the same name as trade name and company name, but this is not always the case. For example, a company may be registered under one official name, while it operates commercially under another name that better suits its marketing strategy.

The trade name is also not the same as a trademark, which specifically serves to distinguish products or services from those of competitors. While a trademark must be registered at official agencies such as the Benelux Office for Intellectual Property (BOIP), the right to a trade name arises from its first public and continuing use in commerce.

What is the legal basis of trade name protection?

The protection of the trade name finds its basis in Article 8 of the Paris Convention of March 20, 1883 for the Protection of Industrial Property: The trade name will be protected in all countries of the Union without any obligation of filing or registration, whether or not it is part of a trademark or trade mark.

In Belgium, trade name protection can be enforced through the rules on unfair trade and market practices and, more specifically, through Articles VI.98,1°, VI.104, and VI.105,8° of the Code of Economic Law (CEL).

Unlike Netherlands Belgium therefore does not have a specific Trade Name Law.

How does trade name protection arise and end?

Trade name protection arises from the use by a company of a particular trade name. Thus, the protection of the trade name does not depend on a filing or registration, as in the trademark law.

To maintain trade name protection, a visible and continuous public use required. Once a company stops this use, then trade name protection also stops.

Also banal names can be protected; the trade name does not have to be distinctive as in trademark law. However, banal trade names, which of themselves have no, or insufficient, distinctive character, will have a more limited scope of protection than those that do have distinctive character, unless the trade name with little distinctive character has itself been the subject of particularly intense and continuous advertising efforts.

Are there restrictions on trade name protection?

The trade name is protected only in the area where it has an appearance. This area can be local (e.g., the Bruges region or the province of Limburg), national or international.

This area must be demonstrated by the first user in the event of a breach. This is a difference from the trademark law where, for example, a Benelux trademark automatically provides protection for the entire territory of the Benelux.

In the case of a foreign trade name, the first user must demonstrate that his trade name is sufficiently well established and well known in Belgium.

Scope of protection

Trade name protection means that the first user of a trade name is protected against danger of confusion. This confusion may be visual (similar colors or fonts), auditory (similar sounds) or conceptual (similar shapes).

Protection is provided against 2 forms of confusion: the danger that the public takes one company for another (direct danger of confusion) or that the public assumes - in reality, non-existent - links between the companies concerned due to the associative link between two designations (indirect danger of confusion).

The likelihood of confusion must be assessed in concreto, taking into account all the circumstances. In assessing the likelihood of confusion, Belgian case law takes into account the three following criteria:
1) the similarity between the trade names themselves;
(2) the nature of the respective commercial activities; and
3) the territory in which the activities are conducted.

It is not required that these criteria be cumulative. However, these criteria are interdependent: e.g. a low degree of similarity of the commercial activities carried out can be offset by the identical or very high degree of similarity of the trade names.

What it first criterion Regarding, Belgian case law holds that similarity between two trade names - as in the trademark law - should be assessed on the basis of the complete designations as they are effectively and concretely used. In the overall impression, the distinctive and dominant components of the trade names play a very important role, since these are the elements that attract the public's attention. The risk of confusion should be assessed synthetically and not analytically: the similarities are more important than the differences.

What it second criterion concerns, it is not required that the activities of the two companies be identical. It is sufficient that the companies potentially address the same public, which may suggest a certain link between them. Belgian case law is divided on the issue of competition: according to some case law, it is not required that they be competitors, while other case law holds that there can be no confusion if the two companies are not competitors.

What it third criterion As far as likelihood of confusion is concerned, Belgian case law holds that the likelihood of confusion is greatest when the territories in which the two companies operate overlap or are close to each other. However, the companies' potential sphere of spatial influence is taken into account in the assessment. The role of the Internet and the fact that consumers are mobile means that the geographical familiarity of the trade name is becoming broader and is often no longer limited to the immediate vicinity of the operation for which the trade name is used.

Enforcement of trade name rights

If a company notices that its trade name is being unlawfully used in Belgium by another company, there are several legal actions available:

• Strike claim: A procedure before the president of the enterprise court, sitting as in summary proceedings, to have the further use of the infringing trade name prohibited in the region in which the first user operates. The infringer is thus required to change its trade name. Such an order can be coupled with a penalty payment to ensure that the order is effectively enforced.
• Damages: If it can be shown that the company has suffered damages due to the wrongful use, damages can be claimed in the company court.

It is important in such proceedings to have sufficient evidence of the first and continuing use of the trade name, as well as its prominence and reach.

Practical recommendations for businesses

To optimize the protection of your trade name in Belgium, the following is recommended:

• Proof of first use: Keep enough past communication materials so that in the event of a dispute, proof of first use can be provided.
• Public and continuous use: Use your trade name visibly on all company communications, such as websites, invoices and advertisements.
• Consider registration: Although not mandatory, registering your trade name in the CBE or if Benelux trademark at the BOIP provide additional legal protection and evidence.
• Monitoring: Monitor the market and trademark registrations to detect infringements of your trade name in a timely manner.
• Seeking legal advice: When in doubt, or if a violation is found, it is wise to seek legal advice from an attorney to take the appropriate steps.

By taking a proactive approach to protecting your trade name, you can secure your company's unique identity and strengthen your position in the marketplace.