Assessing company names: Is my company name still available?

updated on 13. Februar 2019 18 minutes reading time
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A great company name is worth more than most people think. The financial value becomes especially apparent when customers begin to confuse one company for another. To avoid such situations, you should carefully assess your desired company name before forming your company.

firma.de has put together an overview of what to keep in mind when doing so and what laws are in place to protect your company.

Firmenname, Unternehmensbezeichnung or Geschäftsbezeichnung?

Before you decide on a name for your company and check its availability, you should be aware of and be able to differentiate between the following terms:

What is a Firmenname?

A Firmenname is a company name that is listed in the commercial register (Handelsregister). This name has to be used in all written communication, in the company masthead, and on invoices. It must also contain the company’s legal form.

What is an Unternehmensbezeichnung?

An Unternehmensbezeichnung, or a business designation, is an official company name that is not listed in the Handelsregister. Small traders, freelancers, sole proprietors and partnerships must come up with a business designation when registering their trade (Gewerbeanmeldung).

The amount of particular specifications and restrictions when it comes to choosing a name depends on the company’s legal form.

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What is a Geschäftsbezeichnung?

Unlike a company name, a Geschäftsbezeichnung – or trade designation – may be a shortened form of a business’s ‘official name’, one that doesn’t include the legal company form.

This shortened form is sometimes referred to as an ‘Etablissementbezeichnung’ – or establishment designation – and is used for external communications, including websites, marketing and branding. This is often the name that a company’s customers know – not the company name, which includes the legal company form.

Regardless of what company name you choose, you can call your company whatever you wish day to day, as long as you’re not violating any third-party rights.

The easiest way to tell the difference between a company name and a trade designation is to take a look at prominent companies in the German market:

Company name Trade designation
Bayerische Motoren Werke Aktiengesellschaft BMW
Robert Bosch GmbH Bosch
dm-drogerie markt GmbH & Co. KG dm
Deichmann SE Deichmann
Müller Holding Ltd. & Co. KG Müller

You may also come across the term ‘Unternehmenskennzeichnung’. It is often used as an umbrella term in German and comes from trademark law:

“Company symbols are signs used in the course of trade as a name, company name or special designation of a business operation or an enterprise.” (§ 5 MarkenG).

 

Unfortunately, the terms mentioned above (especiallyFirmenname, Unternehmensbezeichnung, and Geschäftsbezeichnung) are often used synonymously (and thus incorrectly) in everyday language.

Step 1: Choose a company name

Entrepreneurs are spoiled for choice when it comes to picking a company name. It has to be chosen cleverly so that it sticks in the customer’s memory, especially if you come up with a more imaginative name that doesn’t indicate the type of company you have.

Negative associations or translation errors must be avoided at all costs.

You can read more on coming up with a successful brand name in four easy steps in this firma.de guide (German article).

Rules for company names

There are several options for corporations when it comes to company names:

  • Person-based name: Heike Schlosser GmbH
  • Object-based name: Hydraulic Technology GmbH
  • Imaginative name: okaygo AG
  • Hybrid name: Oliver Smith Frysmith Diner UG (haftungsbeschränkt)

You should also avoid making the following mistakes when coming up with a name:

  • No generic industry designations (Dairy GmbH, Forest Protection gUG, Consulting AG)
  • No misleading descriptions about your company’s
    • size and location (Global, Group, Hamburg)
    • field of business (Finance, Bank, Loans)
    • prominence (International, German, European)
    • organisation (Institute, Academy)
    • environmental focus (Organic)
    • No special characters that can’t be communicated
    • No suffixes like ‘Partner’ or ‘Co.’

Purely imaginative names may not be used as company names for all legal company forms. Business designations of partnerships and sole proprietorships that are not listed in the commercial register must indicate who the owners are. You can read more about the rules for business designations and examples for sole proprietors here. There are additional regulations for choosing a name for a GbR as well.

Always keep the true purpose of a company name in mind: setting your company apart from other businesses. There are existing companies under the jurisdiction of your relevant registry court (Registergericht) and/or trade office (Gewerbeamt) that will play an essential role in analysing your business’s name’s distinctiveness.

Outsourcing the creation of your business’s name

If you’re having trouble finding inspiration for a creative name for your business, you can easily find service providers that will come up with names for you.

Name generators can be a great way to kick-start your own creative process, but be aware that the suggestions you see have also been suggested to other users whose trademark registration or entries into the commercial register may already be underway.

Step 2: Assessing your desired company name: Has my idea been taken?

Once you’ve come up with a company name (or, ideally, multiple variations of one), you should verify whether it’s still available or not. The necessary research can be divided into multiple steps. A thorough assessment is the only way to avoid conflicts with third-party company name rights.

Checking the availability of your company name

Provided that your desired name meets all of the specifications listed above, you can begin your research. Starting off with a simple Google search can provide your first few clues as to whether the name is already in use. The following steps consist of performing searches in the usual databases:

  • Bundesanzeiger
  • Deutsches Marken- und Patentamt (DPMA) (German Trademark and Patent Office)
  • European Union Intellectual Property Office (EUIPO)
  • genios.de

 

My idea has been taken: What are my options?

Even if your company name has already been taken, both names can generally coexist. For this to be the case, the businesses must be listed in separate commercial/trade registers.

Still, you should think carefully before you risk choosing a name that can be too easily confused with that of another business. Doing so can have far-reaching consequences, especially when it comes to company websites and potential trademark registration.

You’ll find more information on rights to company names in step three.

Performing a trademark search: Checking for third-party rights to company names

Screening for trademarks and similarities is necessary to rule out already existing trademark rights. Trademark registers can be publicly accessed, allowing you or a professional to perform the necessary searches.

My brand name is taken: What should I do?

If you come across a trademark with the same or very similar wording, it’s time to start over. Trademark law is powerful, and it grants the trademark’s owner comprehensive rights to the commercial use of the designation (word mark). That owner’s rights are also, by default, older. If you use the trademarked name for your business and a trademark violation can be proven, you may soon have an injunction suit and damage claims on your hands.

Starting a company in Germany? We can help you register a trademark for your name!

Checking the availability of domains for your business name

To go along with your company name, you’ll need an Internet presence and the fitting domain. Let’s say you want to name your company Happy Tech GmbH. For this example, the following domains are no longer available:

  • www.happy-tech.de
  • www.happytech.de
  • www.techhappy.de

In this case, you should think carefully about whether or not it makes sense to proceed with your desired company name. There are bound to be cases of confusion when customers search for your website. As the age of the domain plays an important role in determining the order of search results, Google and other search engines will probably position your competitors more favourably. At worst, potential customers could end up with your competitors.

You should therefore always search DENIC or other databases to see if your desired top-level domain is still available. Don’t forget to search for domains with typos! In many cases, it is advisable to secure slightly different variants of your desired domain as well.

Checking other media

Always keep in mind that a significant proportion of our communications happens via smartphones. The names of apps are usually protected by trademark and patent laws as well. Make sure to search the iTunes App Store and the Google PlayStore for similar product names. Finally, look through social media for check-ins. Is your desired company name already being used by an Instagram user or a YouTuber? If so, you can now make a more informed decision as to whether you’d like to proceed with the name or not.

A quick Google News search is advisable as well. Are there any reports about a company with the same name or with a similar one? Will that company’s PR department be able to influence your business? Search thoroughly and always remember that there’s hardly anything that the Internet forgets.

IHK review

Before your company is entered into the commercial register, your relevant Chamber of Industry and Commerce (Industrie- und Handelskammer – IHK) will decide whether your suggestion is a suitable company name.

If the IHK rejects your suggestion, you can often supplement it or make a small change to improve the name’s distinctiveness. If the IHK gives you the green light, you can continue forming your company.

Tip: firma.de can arrange IHK checks for founders and can provide help in choosing an optimal company name in advance.

Step 3: Securing the rights to your company name

The rights to your own name are generally protected. When it comes to company names in particular, however, various rights may overlap. German Civil Code (das Bürgerliche Gesetzbuch, or BGB), trademark law (Markenrecht), laws against unfair competition and the German Commercial Code (Handelsgesetzbuch) form the pillars of name rights.

Name rights according to German Civil Code (Bürgerlichen Gesetzbuches – BGB)

Every entrepreneur has the right to use their own name. If you wish to use your name for your business, your rights are regulated by § 12 of the German Civil Code (das Bürgerliche Gesetzbuch, or BGB). Should a third party use your name without authorisation, they would be violating your name rights. You may then lawfully force them to desist the demonstrable and damaging third-party use of your name.

German Commercial Code (Handelsgesetzbuch)

All registered merchants and businesses are protected under § 30 of the German Commercial Code (Handelsgesetzbuch):

No other company or branch of another company may be registered with the same name in the commercial register under the jurisdiction of the same registry court. The companies’ names must differ significantly. This regulation, however, does not apply to trade designations.

Let’s take a look at a theoretical example: Two painters establish businesses in Bielefeld and register the names ‘ABC Friedrich Master Painters GmbH’ and ‘Friedrich Schneider Painters UG (limited liability)’ in the commercial register. They both separately and independently use the trade designation ‘Friedrich Painters’. In such a case, customers can easily confuse the two businesses. In order to secure the rights to the company name, it would be sensible to register a trademark.

Trademark law

In general, registering a trademark protects products and services – not company names. Still, trademark law provides owners of a commercial designation with exclusive identification rights (§ 15 MarkenG). This protects not only those holding the name rights but consumers as well. This regulation is in place to minimise confusion between similar businesses.

Learn more about how to protect your company name in our article here. 

Trademark protection vs. name rights, according to the BGB

For the most part, the contents of the various regulations are consistent. But what happens when company identification rights collide? In such a case, trademark law takes priority over an entrepreneur’s right to use their own name. This means that a trademark registration has more weight than a simple entry in the commercial register.

There are many factors that play a critical role in assessing rights violations:

  • Geographic scope
  • Principle of priority
  • Prominence
  • Potential for confusion/dilution

The potential for cases in which these rights overlap are exactly why searches in the DPMA or EUIPO trademark registers are so critical.

Always assess your desired company name ahead of time to secure the rights to its long-term use.

 

The information published on our site is all written and checked by experts with the greatest care. Nevertheless, we cannot guarantee the accuracy of this information, as laws and regulations are subject to constant change. Therefore, always consult an expert in a specific case – we would be happy to connect you with the right professional.

firma.de assumes no liability for damages caused by errors in the texts.

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