How can I protect my company's name in Germany?

Contents

• Why should I get a trademark?
• What are the main benefits?
• Protect your company logo
• Trademark registration 
• How long am I protected?
• The commercial register

Why should I protect my company name as a trademark?

If your company name is protected as a trademark, you have the exclusive right to the brand name. This gives you a big advantage over competitors who abuse your company name.

Here’s something that can happen quite quickly to an inexperienced startup. You have an innovative idea for a certain product or service and are successful with it. Then the imitators come along and shamelessly use your name as their own vehicle for success. For example, you find offers on platforms like Amazon or eBay carrying your own successful name.

Once the company name has been protected as a trademark, these offers can be deleted relatively easily by presenting the trademark certificate with the protected company name to the platform operators. Some online trading platforms even have their own trademark monitoring tools, such as Amazon trademark registration or eBay’s VeRI reporting tool.

If a competitor uses the name in the same or a similar sector, you can do more than just enforce an injunction. You can even claim damages in the form of a Verletzergewinn (infringer’s profit). To calculate the amount of the infringer’s profit, you’ll have to verify which profit resulted for the “infringer” of trademark protection from the infringement of the trademark right and whether certain costs are to be deducted from it – if any.

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Which company names can benefit from legal protection?

To find out whether a company name is suitable for trademark protection, you’ll want to check whether the name meets the following criteria before you start filing the trademark application:

Your company name must be distinct

General terms such as “office chair” for selling office chairs or “pasta” for selling noodles are not suitable company names. Even attributes such as “cheap” or “tasty”, which are often used in advertising, are not distinct enough to be protected as names.

Your company name must be available as a trademark

Be sure to check if your desired company name is still available. To do this, you should consult all available trademark registers (also in other European and international countries, if necessary) from your sector and find out whether similar or even identical names are already protected by trademark law.

Consulting the Handelsregister (commercial register) is also essential. Companies that have not (yet) applied for trademark protection in your name are often registered there.

To avoid conflicts, you should either choose a different name or register as a trademark as quickly as possible – BEFORE your competitors do. If a competitor has applied for trademark protection even one day before you, they have priority and you won’t be able to protect your name.

Before you protect your name, you must check if it is still available. An extensive name search should ideally take place before a company name is even used and not only when an application for trademark protection is filed. The trademark offices will not refund the fees for failed applications!

We also recommend that you check to see whether domains containing your name are still available. It’s best to look for alternative spellings and typos.

Your company name must not contain a national emblem

Your company name may not contain symbols of state sovereignty, so-called “emblems”. State sovereignty refers to officials and functionaries such as the police, the military or the federal government. For example, you’re not allowed to call your company “Federal Chancellor” or “Federal Supreme Court”. Any unauthorised use of national emblems will be prosecuted.

Your company name may not offend morality or public order

You cannot protect an immoral name. That means that words that violate current social and legal morals may not be registered as company names. The denigration of existing company names and real persons in their own company names is also taboo (§ 1 UWG). Otherwise, you’ll have to pay damages (§ 826 BGB).

Your company name can’t be misleading

You can’t have a name protected by trademark law that could mislead your customers. For example, your company name may not contain any location attributes that do not apply to your location or indicate organic production if it was actually carried out with conventional means.

Protect your company logo

Trademark protection is not only worthwhile for the company name. The company logo in particular is often the first thing that customers notice about your company, and thus your most important figurehead.

Since the design of a striking and attractive company logo takes a lot of time and money, it’s even more important to have this company logo protected. Imitators may risk misusing your logo and making money at your expense. If you protect your company logo as a trademark, you have the right to take action against these imitators and claim damages, if necessary.

The same rules apply to trademark protection for company logos as to company names. The following conditions must be met:

• Distinctive character
• Availability
• No national emblems
• Neither immoral nor disorderly
• Not confusing

Trademark registration in Germany and internationally

In summary, trademark protection in Germany requires a trademark application at the Deutsches Patent—und Markenamt (DPMA). International or European trademarks must be protected at the Office of the European Union for Intellectual Property.

It’s best to register a wordmark to register and protect your company name. This protects a sequence of letters, numbers, and special characters. If you apply for a wordmark/logo, you can add additional protection with lettering and an illustration. This is especially recommended for protecting a company logo.

To register your company name or logo as a trademark in Germany, file an application for trademark registration at the DPMA (German patent and trademark office). Registration is possible by post, in person, by fax or online. After about three to four months, your company name is registered, and you can then enforce the corresponding property rights. A trademark registered in Germany offers reliable legal protection and can serve as a basis for international trademark applications.

If your company is active within the EU, it’s worth registering the company name as a Union trademark or Union guarantee trademark. You must register with the European Union Intellectual Property Organization (EUIPO) to do this. Here, too, you can use the postal service or register in person or online.

If you wish to register your company name or logo outside the EU, register it with the World Intellectual Property Organization (WIPO). For the so-called IR Trademark, you can choose in which of the 126 signatory states to the Madrid Agreement your application is to be valid. However, since international applications are expensive and require extensive research, they’re not recommended for new entrepreneurs.

How long is the trademark protection for a company name valid?

If an application for protection of a trademark is accepted, the trademark registration is initially valid for 10 years and can be renewed as often as required. Each extension is also associated with costs. At the DPMA, for example, the extension of trademark protection costs €750. If the trademark is valid for more than three classes of goods and services, an additional €260 will be charged for each additional class.

Can I have a company name entered in the Handelsregister for protection?

In principle, registration in the Handelsregister (commercial register) does not protect against anyone else claiming the name. If certain conditions are met, a company name can be protected solely by its use as a company symbol. This form of protection is valid if a large proportion of the buyers of the products or services of a trademark assign exactly this trademark to a company. In practice, however, this is usually difficult to prove. For this reason, we recommend protecting your company name or your company logo as a brand name. With this type of protection, it’s legally much easier to prohibit another company from using the company name.

Why register the company name in the commercial register?

Registration in the commercial register is of little use in protecting your company name, but there are several other reasons why registering it is sensible or may even be obligatory. Entry in the commercial register is mandatory if your company “requires commercial business operations”. This means that the company is subject to the provisions of the HGB (commercial code).

For example, the company must comply with the ‘Principles of Proper Accounting’ (GoB) defined in § 243 HGB. This regulation applies to stock companies (AG), limited liability companies (GmbH), general partnerships (OHG) or limited partnerships (KG).

However, as a sole proprietor (Einzelunternehmer) or as a company constituted under civil law (GbR), the ‘commercial business’ is not absolutely necessary. However, you do have the option of registering voluntarily in the commercial register. This has certain advantages and disadvantages:

Advantages of entry into the commercial register

• If you are not registered in the commercial register, you may not give your company an imaginary name. The full name of the owner must be given instead. An attractive fantasy name may allow you to market your company better.
• Gaining the trust of banks and companies, as every registered company has to comply with the obligations arising from the HGB (commercial code). This applies, in particular, to accounting and publication obligations.

Disadvantages of an entry in the commercial register

• A notary has to make the commercial register entry, plus any changes to the entry – both of which incur costs. The costs vary depending on the legal form.
• A surplus income statement is no longer sufficient. It’s replaced by the accounting obligation and the obligation to keep double-entry accounts.
• The German HGB (commercial code) applies to all companies entered into it, which has significantly stricter regulations than for companies not entered into the commercial register.

The advantages and disadvantages must be weighed up in each case. Don’t underestimate the confidence bonus you enjoy with potential customers and business partners when you have an entry.