The corporate name is the name given to a company that identifies it as a legal entity and distinguishes it from competing companies.
It is therefore an essential business identifier, which may change according to the evolution of the legal structure (e.g. following a takeover, a change of control, or the creation of a new entity associated with it) but which, in general, remains the same (the idea being to allow its customers to identify the company in a constant manner).
In principle, ownership of the corporate name is acquired as soon as the company is registered in the Trade and Companies Register (RCS) and is set out in the company’s articles of incorporation.
How to choose it?
The choice of the corporate name is free, provided that it is legal and does not interfere with the rights of third parties (availability criterion).
Therefore, to be sure and to assess the legal risk, it is strongly recommended to carry out a prior art search before filing the articles of association, similar to the search prior to filing a trademark.
How to protect it?
The corporate name, whose protection has a national territorial scope, is not a title of intellectual property, and therefore cannot be protected on the basis of an infringement action, specific to intellectual property rights.
On the other hand, it may be protected on the basis of unfair competition, if it is shown that the use of the corporate name by a third party creates a risk of confusion in the mind of the public.
Indeed, article L.711-3 of the Intellectual Property Code provides that: ” I.- A trademark that infringes on prior rights effective in France may not be validly registered and, if registered, may be declared invalid, in particular: (…)
3° A name or company name, if there is a risk of confusion in the public mind; (…)” .
How to strengthen the protection?
The corporate name may benefit from additional protection, which reinforces its initial protection, when it is registered as a trademark.
Indeed, it will be protected under trademark law and therefore intellectual property rights, which includes the infringement action.
It is nevertheless important that the owner of the said trademark be able to demonstrate its effective exploitation for the designated good(s) and/or service(s) and in the context of its activity, in order not to incur the revocation of its trademark registration.
Point of attention
Not to be confused with :
- The trade name, which is the name under which the activity of a company is known to the public. It can be identical or different from the company name and can also be affixed to company documents (invoices, catalogs, etc.);
- The sign, which makes it possible to individualize, identify and locate an establishment or a physical sales outlet of a company;
- The domain name, which identifies a site belonging to the company on the Internet.
If the partner accepts that his patronymic name be used as a corporate name, this name becomes “a distinctive sign that has become detached from the natural person who bears it in order to apply to the legal person that it distinguishes, and thus becomes an object of incorporeal property” of which the legal person is the owner.
The partner cannot oppose the use of his patronymic name by the company, nor can he demand a modification of the corporate name if he were to transfer his shares. (Cass. com., 12 March 1985, n°84-17163)
Point of jurisprudence
The ‘Cour de cassation” recalls that ” the action in unfair competition (…) only requires the existence of wrongful facts generating a prejudice “, i.e., a risk of confusion between the prior and subsequent companies (Cass. com., November 10, 2021, 19-25.873).
Thus, factors such as competitive situation or intention are irrelevant.
The Bouchara Law firm assists you in particular in :
- Conducting prior art searches;
- Protection and defense of your company name and other commercial identifiers;
- The formalities for filing trademarks before the Offices (INPI for France, EUIPO for the European Union, WIPO for the member countries of the Madrid Union etc.);
- Protection and defense of your trademarks (opposition proceedings, nullity actions, infringement actions, etc.).