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Infringement of the trade name law with descriptive designation?


In principle, a trade name that is already in use in social an economic life is protected against its use by another person. This protection not only applies to trade names with just a descriptive designation. Therefore, just the words ‘the butcher’ or ‘rent a car’ cannot be claimed for exclusive use as a trade name. They may be trade names, but there is a risk that other companies will also use the name. Attorney Hidde Reitsma explains.

Older trade name enjoys protection in the Netherlands

According to Article 5 of the Trade Names Act, it is prohibited to use a trade name that is already in use by another party, or that differs very little from an older trade name if there is a risk of confusion on the part of the public.

No exclusive use of a descriptive designation

An exception to Article 5 applies to a trade name that consists solely of descriptive designations. It follows from the Supreme Court’s settled case law that anyone should be able to use a designation in their trade name that is descriptive of their products or services. Even if this creates a risk of confusion with other trade names.

Dutch trade name Brandwacht Huren versus Brandwacht Inhuren

In a recent case, the court faced the question of whether the trade name ‘Brandwacht Inhuren’ infringed the trade name rights of ‘Brandwacht Huren’. The defendant in the case had founded Brandwacht Inhuren after he had worked for Brandwacht Huren for many years. Both companies focus on the private market for hiring firefighters.

No infringement of Dutch trade name law

The court in preliminary relief proceedings found that the trade name ‘Brandwacht Huren’ was purely descriptive in character. After all, the designations ‘Firefighter’ and ‘hiring’ are descriptive of the service offered by Brandwacht Huren, namely the hiring of firefighters. This means that Brandwacht Huren cannot derive protection from its older trade name. There was, therefore, no question of a breach of Brandwacht Huren’s trade name rights by the defendant.

Unlawful act: Creating unnecessary confusion

However, the court believed that the defendant had acted unlawfully towards Brandwacht Huren. For example, the defendant had sent a WhatsApp message to firefighters in the network of Brandwacht Huren. Furthermore, as the owner of Brandwacht Inhuren, he had invited firefighters in Brandwacht Huren’s network to become his LinkedIn connections. Finally, the defendant answered telephone calls with either the name ‘Brandwacht Huren’ or ‘Brandwacht Inhuren’.

Dutch lawyer in cases of trade name infringement

According to the judge in preliminary relief proceedings, with these actions, the defendant deliberately had created confusion in order to lure customers away from the competitor in a misleading way. Therefore, he may no longer use the name ‘Brandwacht Inhuren’.

Hidde Reitsma

Hidde Reitsma

Hidde has a varied consultancy and litigation practice, focusing on corporate law and insolvency law. He frequently acts in proceedings before the Enterprise Chamber of the Court of Appeal in Amsterdam and in cases on directors’ liability. Hidde also advises on drawing up and negotiating contracts, mergers and acquisitions and joint ventures. Follow Hidde on LinkedIn.

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