In corporate law, the trade name is the name under which a company (or a self-employed person) participates in business and will be known to the public.
It may be mentioned in the Trade and Companies Register (RCS) and appear in the articles of association filed by the company.
This legal concept must be distinguished from that of the sign, which applies to an establishment / premises, but not to the company as a whole.
Indeed, the sign is the extension of the commercial name under which the activity is carried out and known by the public.
The trade name can be the same as the name used by the company as a corporate name, but it can also be different.
It can be a patronymic, a word or a set of words, or a fanciful name, provided that it is legal and in conformity with public order.
The trade name, as well as the corporate name, are not protected by intellectual property rights, unlike trademarks in particular. It is therefore not possible to bring an infringement action on the basis of a trade name.
However, the law provides that a trademark infringing on a trade name that is not only local in scope cannot be validly registered and, if registered, may be declared invalid if there is a likelihood of confusion on the part of the public (Section L.711-3 of the french Intellectual Property Code).
The trade name may therefore be enforceable against a subsequent trademark on two conditions:
- When it has a scope that is not only local;
- When there is a risk of confusion in the mind of the consumer.The likelihood of confusion will be assessed here with regard to the more or less of the trade name invoked, the similarity between the trade name invoked and the the similarity between the activities actually offered under the trade name and the activities offered under the product(s) and/or service( s) designated by the contested trademark.
The trade name does not have the same scope as the corporate name when it is opposed to a subsequent trademark, the latter being considered in principle as having a national scope without having to justify it.
In addition to the possibility of opposing a trade name as “anteriority” to a a company may also bring a legal action on the basis of a later trademark. Unfair competition against a third party who would create a risk of confusion with its trade name and thus force its competitor to proceed with the change of the litigious name.
As the unfair competition action is based on article 1240 of the french Civil Code, the plaintiff must demonstrate the existence of a fault, a prejudice and a causal link:
- The fault is characterized by the reproduction or imitation of the trade name, causing confusion, it being specified that the assessment of the fault will be carried out with regard, in particular, to the notoriety of this trade name, the activities carried out, the more or less original character of the trade name (or, conversely, its generic character) as well as its geographical scope;
- The prejudice can be characterized by a detour of customers or a commercial disorder;
- Causation requires the plaintiff to show that the damage he or she suffers is the result of the fault of the perpetrator of the unfair or parasitic acts in question.
It is recommended to be accompanied by a lawyer specialized in intellectual property from the stage of creation of the company to be able to anticipate the problems related to the rights of third parties and optimize the protection of its commercial identifiers.
The Bouchara firm assists you in particular in :
- The development and management of your commercial strategy (verification of the availability of your commercial identifiers by conducting a prior art search among identical or similar prior rights);
- The protection and defense of your creations before the Intellectual Property Offices (INPI for France, EUIPO for the European Union etc…) and the Courts in France and abroad;
- The formalities for filing your intellectual property titles and the follow-up of the registration procedure;
- Opposition proceedings, actions for invalidity, forfeiture, infringement, seizure proceedings, unfair competition proceedings etc… ;
- Internet monitoring to detect infringements of your intellectual property rights (reporting procedure etc…).