Choosing the Name of the Company

Choosing a name for your company may seem simple, yet it's a crucial step: you need to find the ideal name that attracts customers and sets you apart from your competitors. Moreover, you need to comply with various specific provisions depending on whether you start your business as a sole proprietorship or a company.

Choosing a Name for a Sole Proprietorship

If you start your business as a sole proprietorship (or natural person), you may choose to run your business under a name other than your own name. For example, rather than opening your flower shop under the name “Dupont”, you might choose to call it “Au lys d'or”. In such cases, you will use a trade name.

Trade Name

The trade name is the name under which a natural person carries out their commercial activity or the name under which a commercial enterprise is operated and known to its customers.

Choosing a Trade Name

In principle you are free to choose the name of your business activity. You can use your last name, an imaginary name, etc. The choice of your business name is important, because it is under this name that your company will present itself to the market and its competitors. It makes it possible, on the one hand, to identify your company and, on the other hand, to make it stand out from other companies on the market. The name also plays an advertising role. Furthermore, the name of your company must be indicated on all official documents related to your professional activity (invoices, purchase orders, business cards, etc.).

While the choice of trade name is in principle free, you need to make sure that the chosen name does not infringe a prior right belonging to a competing business.

You may use various options to check in advance whether a name exists which resembles the one you want to use:

• search for companies that are active via the Crossroads Bank for Enterprises;
• consult the section of the website of the Belgian Official Gazette for commercial companies;
• use internet search engines;
• solicit a specialist company offering this type of search for a fee.

Protection of the Trade Name

The right to a trade name requires no prior filing or registration formalities. The right arises from the first public use made of the trade name.

Publishing the trade name in the Crossroads Bank for Enterprises might constitute this first use, but in the event of a dispute, proof will have to be provided, meaning that the rules of the Civil Code will apply.

The scope of protection of a trade name depends on the use that is made of it. Depending on the case, it can be used at the level of a city, a region, the country, etc. Obviously, the more widely known and used the name, the better the protection.

If your trade name is used by another person, or if someone uses a name that leads to confusion, you may invoke Article VI.104 of Book VI Market Practices and Consumer Protection of the Code of Economic Law, which states that (translation) “any act contrary to honest market practices by which a company prejudices or may prejudice the professional interests of one or more other companies is prohibited”.

In the event of a dispute between your trade name and a distinctive sign belonging to another company, the court will first analyse the precedence (which sign appeared first?) and will then take into account various criteria such as the goodwill area, commercial reach, reputation of the business, potential extension of the business, etc., before possibly forcing one of the companies to change its name. In addition, damages may be awarded.

Any legal proceedings entail substantial costs. It is therefore a good idea to weigh up the relevance of such proceedings. To this end, you can solicit help from a legal adviser.

Giving a Name to a Company

If you start your business in the form of a company, you need to distinguish between the trade name of your company and its legal name (or company name).

Trade Name

The trade name is the name under which a commercial enterprise is operated and known to its customers.

Company Name

The company name is the official name of the company (SRL or SA for example), which is incorporated in the company's articles of association and published in the Belgian Official Gazette. This name is only used to identify the company, but has no advertising role as does the company's trade name.

It is of course possible to use the same name as a trade name and a company name.

Choosing a Company Name

Choosing a company name for a SRL or SA, for example, is free. You can use the name of the partners, the purpose of the company or any other name. The name of the company will be preceded or followed by its legal form, either in full (e.g.: société anonyme - public limited company) or in abbreviated form (e.g.: SA).

However, to avoid any risk of confusion or unfair competition (to prevent one company from being mistaken for another), you need to be careful to choose a name that is not already in use by another company or that would be too similar to the name of another company. Similarly, it may be useful to check that the name has not been registered as a trademark or is not the known name of an organisation or association. As a general rule, it is the notary who is responsible for checking these aspects before the company is set up.

There are various possibilities for checking whether a name exists before choosing a company name:

• search for companies that are active via the Crossroads Bank for Enterprises;
• consult the section of the website of the Belgian Official Gazette for legal entities
• use internet search engines.
• consult a specialist company also offering this type of search for a fee.

Protecting a Company Name

The right to the company name of a legal entity is acquired upon lodgment at the Registry, since the company acquires legal personality on that date.

The Companies and Associations Code contains the provisions relating to this protection (Part 1 - Book 2 - Title 3 - Article 2:3 §1). It stipulates that a company cannot use a name which is already in use. However, the only sanction provided for is the payment of damages.

In the event of a dispute, the court will first analyse the precedence and will then take into account various criteria such as the goodwill area, commercial reach, reputation of the business, potential extension of the business, etc., before possibly forcing companies to change their name.

What About the Trademark?

While the trade name and company name are distinctive signs of the company itself, the trademark is the distinctive sign of the goods or services of the company.

Of course, the same sign can be chosen as a trademark and trade name for example. You can therefore also register your company name in the form of a Benelux, Community or worldwide trademark, to benefit from stronger and extended protection.

In order to be protected, the trademark must be diligently registered according to a procedure. The Benelux Office for Intellectual Property can provide you with all the information you need on this subject.

Before choosing a trade or company name for your business, you may want to check whether there is a comparable or similar earlier trademark for similar activities and territories. You can carry out a search via the website of the Benelux Office for Intellectual Property (BOIP), which manages the Benelux trademark register. This register provides access to trademarks which are protected on the Benelux territory.

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