A business name and a trademark are important aspects of business that help identify companies and their products. A business name is the official name of a company used in legal documents. A trademark is a symbol/name/combination of text and images that represents a company’s products or services on the market, protecting them from copying and shaping the image of the future brand. Understanding the difference between these concepts helps to build business strategies more effectively and protect the company’s interests.
Company name
A business name (or commercial name) is the official name of a company under which it is registered in the state register and conducts its business. It can be the full or abbreviated name of a legal entity. It is used to identify the company in official documents, contracts, tax reports, etc. In Ukrainian law, a company name has the same meaning as a commercial name, and the term “commercial (business) name” is often used in court practice.
Pursuant to Chapter 43 of the Civil Code of Ukraine (the “CCU”), a commercial (business) name is an object of intellectual property and, accordingly, is protected along with other intellectual property. In fact, the trade (commercial) name of a legal entity most often coincides with its name, although the court practice clearly indicates that the name of a legal entity and the company’s trade name are not identical.
The intellectual property right to a business name arises from the first use of such a name, regardless of the registration of such a business name and regardless of whether the business name is part of a trademark (pursuant to Article 489(2) of the Civil Code of Ukraine).
It is important to note that the use of identical trade names is allowed only if it does not mislead users about goods and services. That is, if companies sell different products and use the same brand name, it is allowed. Otherwise, the company that started using the brand name earlier has priority. In the event of a dispute between companies that have acquired the right to a trade name earlier, the date of state registration of the company name plays a significant role.
The legislation does not contain an exhaustive list of characteristics or a clear definition of a company name. Certain requirements and provisions on a business name, or rather a company, are set out in a regulatory act of the Central Executive Committee of the USSR and the Council of People’s Commissars of the USSR of 1927, which is still in force in Ukraine with amendments since 2004. However, the court practice has clarified what characterizes a commercial (brand) name:
- Systematic nature of use
- The presence of a certain type of activity (goods, services, works) with which the company name is associated
- Use in commercial activities
- Information that can be proved by certificates of state bodies, sociological surveys, statistics, information from contractors, etc.
- Exclusivity
- Truthfulness
- Extraterritoriality
Trademark
A trademark, or as it is also defined by the Law of Ukraine “On Protection of Rights to Marks for Goods and Services” (as amended on 31.12.2023), is a sign for goods and services – a sign, symbol, word, phrase or combination used to identify goods and/or services provided by a company. It can be a logo, slogan, name, sound, formula, or even a unique type of packaging. It is used for marketing, branding of goods and services, advertising campaigns, etc.
Trademark protection is ensured by intellectual property law. A registered trademark grants the owner of such a trademark the exclusive right to use this mark and allows prohibiting the use by others without permission. A TM does not necessarily have to be similar to the name of the TM right holder, i.e., a company may be called “Supermarket of Happiness” and have TMs “Vegetables of Happiness”, “Fruits of Happiness”, “Grocery of Happiness”. Accordingly, one company may have an unlimited number of TMs. From the moment of filing a TM, the applicant has the priority right to use such a mark, and from the moment of obtaining a registration certificate, the applicant has exclusive rights to the relevant TM, including the right to protect its right to the TM.
What is the difference between a trade name and a trademark?
Given the different legal nature of a trade name and a trademark, litigation in case of similarity of such names is quite complex and ambiguous.
In such disputes, judges pay attention to the following points when making a decision:
- Similarity in a number of features of the TM and the company name
- The popularity of the use of the trade name on the territory of Ukraine
- The date of acquisition of rights to the trade name in comparison with the date of filing an application for TM registration
- Group of goods and services for which the company name and TM are used
If the TM is registered on a date earlier than the company name, then theoretically the TM has priority. If the TM is registered later than the company name, the owner of such a TM cannot demand (also theoretically) to stop using the company name.
Therefore, understanding the difference between a business name and a trademark is key to successful business management. A company name serves as the official identification of a company, while a trademark also serves as a marketing tool and protection of products and services on the market. The proper use and protection of both concepts allows companies to strengthen their legal position, increase brand awareness and ensure competitive advantages in the market of goods and services.
business name / copyright / intellectual property / trademark
