Lecture
The right to a company name (trade name) is protected through administrative and judicial procedures. An administrative measure aimed at preventing infringement of an existing right to a company name is the refusal, provided for by law, to register an enterprise under a name that coincides with a previously registered name. In this case, only the full name of the plaintiff company, and not any arbitrary part of it, may be the subject of protection. And although consumers are guided primarily by precisely the arbitrary part of a company name, a difference in the distinctive element indicating the legal form of the enterprise is, for the judicial authorities, grounds for treating the names of the enterprises as different.
Where two enterprises bear one and the same name, the subjective right of an enterprise is infringed, and it is therefore entitled to bring an action in court. Along with the defendant, the institution that registered the defendant's enterprise is joined as a third party in the judicial proceedings. If an infringement on the part of the defendant is established, the court obliges the defendant to change its name within the period set by the court and to re-register the enterprise. If it is established that the same name has been assigned to entities of different legal forms, the plaintiff's claim cannot be granted.
No entrepreneur who has created an interesting, recognisable name as a result of considerable expenditure would want a competitor, by using a different legal form of business activity, to be able on entirely lawful grounds to use that name in the distinctive part of its own. Here it is trademarks that serve to protect the entrepreneur's interests, and they can effectively supplement the protection of a company name.
One and the same designation may simultaneously receive protection both as a company name and as a trademark.
The rights being compared are similar in that both belong to the category of absolute and exclusive rights, and both relate to objects of industrial property - commercial designations. They are also similar in the conditions of their creation - they arise only after registration in accordance with the established procedure.
But there are also certain differences between them as regards the conditions of their creation and termination, their scope of operation, and their specific content.
The right to a company name is not alienable from the enterprise, whereas the right to a trademark may be assigned in whole or in part subject to compliance with the relevant requirements of the law. Registration of a trademark provides for a mandatory examination of the designation for novelty, which includes comparison not only with identical designations but also with previously registered designations that are confusingly similar, including company names. The examination of trademarks for novelty is considerably more reliable than the examination of company names carried out through administrative procedures.
The right to a company name and the right to a trademark verbally coinciding with that company name mutually supplement each other and expand the scope of the rights of their holder, provided that they belong to one and the same person. Therefore, an entrepreneur wishing to protect his company name as fully as possible against unfair use by third parties should, simultaneously with the registration of the enterprise, register a logo - a word mark reproducing the company name of the enterprise - or include the company name in the trademark being registered.
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