Protection of the establishment name and the specific name of a business establishment

Occasionally we receive calls from desperate clients who run a store in the city and are victims of confusion with a competitor's business. In most cases, the callers regret that they have not been able to get their name protected as a trademark have.

These clients are all the more relieved when it is explained to them that they are not without protection. In addition to the protection of the trademark, trademark law also provides for the protection of the Company logo before.

What is a company logo?

Company logos are used in § Section 5 (2) sentence 1 MarkenG defined:

Company signs are signs that are used in the course of trade as a name, as a company name or as a special designation of a business or a company.

Business identifiers are almost all signs that can be used to designate a trade or a freelance activity. While "name" and "company" describe the company itself (e.g. "Friseurbetrieb Thomas Schmitz"), the "special designation of a business" is the name of an organizational unit within the company, in particular a store (e.g. "Haargenau"). And it is precisely these characteristics that are at issue here.

Protection of the name of a store

The name of a hairdressing salon, supermarket, nail salon, travel agency or restaurant is always protected if it has distinctive character. Distinctiveness is the ability of a sign to distinguish one store from another.

In the case of trade marks, the requirement for distinctiveness is very high. This means that all signs that describe the goods or services, but also those that only designate a characteristic of the product, are excluded. In addition, promotional additions ("mega") cannot be Distinctive character have. Nowadays, the trademark offices go very far: for example, "Love" should also be merely an emotionalizing claim.

Common names also enjoy the protection of the establishment name

Hairdressers in particular are known to often use hair puns in their names ("Haarmonie", "Haarklein"). These names would be denied distinctive character in a trademark application due to their common usage. The situation is different for so-called establishments.

Traffic is used to the fact that there are certain restaurant names ("Schwarzer Adler", "Alte Post") in almost every town. But it is also used to the fact that there is only one restaurant with each of these names in each town. And for this reason, the oldest "Alte Post" can claim this name for itself.

Scope of protection of the special business name

The geographical scope of protection of the special business name depends on several factors. In the case of common and frequent names, protection extends to the end of the municipality. For rarer names, on the other hand, it depends on the content of the business. In the case of everyday articles (food, drugstore), protection also extends to the municipal boundary.

However, for niche products (e.g. fishing tackle) or goods that consumers usually only buy every few years (furniture), a radius of 50 km, 100 km or more may be appropriate. It is then up to the owner of the store to explain to the court where his customers usually come from.

When does the protection of my store's name begin?

Protection begins with the user name. This is when the name is communicated to the outside world. Unfortunately, case law has never had to clarify what exactly constitutes the triggering date. It is therefore not possible to say with certainty whether it is the ordering of the neon sign, the hanging of this sign or the actual opening of the premises that is decisive. However, this has never been the case in our consulting practice.

What do I do if someone else opens a store with the same or a similar name in my neighborhood?

As with every Trademark dispute the owner of the property right can demand immediate termination, the submission of a cease-and-desist declaration, information about the scope of the infringement, compensation for damages and reimbursement of the warning costs from the infringer. As a rule, the person issuing the warning letter will get all the money back in the end. However, the compensation for damages is usually low.