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a. Introduction

Corporate names and trade names are legally different. Both are determined by their own legislation and have their own characteristics.

Common practice shows that the trade name used by a company is not necessarily equal to its corporate name. For example, Charleston Ltd. exploits a hotel chain named KIWI.

Although trade and corporate names are not subject to the same extent of protection as trademarks do, a certain degree of protection is attributed by their respective legislation.

b. Corporate names

The corporate name is the name mentioned in the deed of incorporation and published as such in the Belgian Law Bulletin. The corporate name is also listed in the Trade Register.

Art. 65 of the Corporate Law, dated May 7, 1999, stipulates concerning this matter:
"Each company should use a name different from the ones used by other companies. In case names are similar or create confusion, each affected party may request modification and compensation, whenever founded".

Protection in this context is limited to corporate names, which is a much more restricted notion than trade names or trademarks. Inevitably, protection is also limited to the Belgian territory.

c. Trade names

This name refers to the name known to the general public and the name used for commercial exploitation. This name is not necessarily officially registered. Use of the name in daily business transactions is sufficient.

The law on trade practice, information and protection of consumers, dated July 14, 1991, offers protection to some extent.

Art. 23, 8° stipulates: "Without prejudice to other legal or provisions or rules, all publicity is prohibited: ..."

8° containing data that could give rise to confusion with another vendor, his products, his services or his activity".

Additionally, the general prohibition on trade practice contrary to accepted moral principles can also be applied, as mentioned under art. 93:
"Any act contrary to accepted trade principles, involving (possible) damage to the professional interests of one or more vendors, is prohibited".

No registration or other formality should be performed in order to call in such a legal protection. Even registration in the trade register is not compulsory.

Normal use of a trade name suffices to benefit from protection. The first to use the trade name will be protected against later users. Obviously, this matter is related to trade companies offering the same kind of services or products under the same trade name.

Due to a lack of formalities, problems may occur to prove one's case.

The offered protection is rather restricted. Before talking about infringement, certain criteria should be considered: the kinds of activity known under this trade name, the region where these activities take place, etc.

Identical or similar trade names should have a high degree of similarity before competitive positions may be damaged or may create confusion with the general public.

d. Value of a trade name // a trademark

Previously existing trade names or corporate names can be called in at your defence against usage of a more recent and registered trademark, conditioned that certain circumstances are met. This should, however, be investigated in each case separately. No general rule applies to this particular situation.