The trade name is the name under which a commercial company participates in the course of trade. A trade name is used to distinguish a company from other companies and also has a marketing function. The right to a trade name belongs to the person who first makes visible, public and continuous use of it. A formal registration procedure is, therefore, not required to acquire a right to a given trade name, but in order to prove the first use, it may be useful to register the trade name with the Crossroads Bank for Enterprises.
A trade name implies the right to prohibit third parties from using the same or a similar name in sucht a way that would create confusion with the trade name. However, this protection applies only within the territory where the trade name is known. Depending on the circumstances, this may be a village, city, region, country, etc.
The scope of protection of a trade name is, therefore, entirely determined by the use made of this name. The more the trade name is known, the broader its protection. Conversely, the right to a trade name expires when it is no longer used.
A trade name should not be confused with a trademark. If a trade name is used to distinguish companies, the purpose of a trademark is to distinguish the goods or services of companies. In addition, a trademark grants an exclusive right of prohibition throughout the territory for which it is registered, which is not the case for a trade name.
Obviously, when choosing and using a trade name, the trademarks owned by third parties must be taken into account, and vice versa. Similarly, the existence of a trade name may, under certain conditions, prevent the registration of a trademark for the same name.
Finally, it is possible for a company to use its trade name as a trademark at the same time (e.g. Philips, Hilton, Fortis). It will then be necessary to determine in each specific situation what the precise use of the name is. However, many companies do not follow this strategy of using a single name to designate both their company and their products, but adopt a specific trademark to distinguish their products (e.g., Sara Lee, which holds the Douwe Egberts, Biotex and Sanex trademarks).
The company name or legal name of a company is the official name of the legal person (e.g. SA or SPRL), which is stated in the articles of association and published in the Belgian Official Gazette. The company name is, therefore, simply used to identify the legal person and, unlike the trade name, it does not have a marketing purpose. Whoever first acquires a company name has an exclusive right to that name for the whole of Belgium. Other legal persons cannot choose an identical company name and could also be forced to change their name and pay damages to the holder of the earlier company name, if they choose a strongly similar company name which can lead to confusion.
It is perfectly possible to use the same sign as a company name and as a trade name.