Closing a company / Question 2
Once the company is gone, is the name free?
The commercial register no longer stands in the way: the protection of a business name rests on its entry in the register, and a deleted company is no longer entered. A trademark may: a registered mark stays an earlier right until it is cancelled, whether the company kept it or sold it. A watch tells you when someone files a name close to it.
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01 / The business name
The entry was the protection.
Exclusive use belongs to the business name entered in the commercial register and published in the SHAB. (OR Art. 956) New company names are measured against the names of companies and cooperatives already entered. (OR Art. 951)
Entries, the deletion included, take effect when they are published in the SHAB. (OR Art. 936a)
Start a free watch on your name02 / The trademark
A mark stands until it is cancelled.
The IPI cancels a mark when its holder asks, when it is not renewed, when a court declares it void or when a request for cancellation succeeds. (MSchG Art. 35) The deletion of its holder from the commercial register is not on that list.
Only the holder of an earlier mark can rely on it against a new filing, by opposition within three months of the new mark’s publication or in court. (MSchG Art. 3(3) and Art. 31)
Start a free watch on your name03 / Non-use
Five years without use.
A mark not used for an uninterrupted five years can no longer be asserted, unless there are proper reasons for the non-use. (MSchG Art. 12(1))
From five years after the opposition period, anyone can ask the IPI to cancel a mark for non-use. (MSchG Art. 35a)
Start a free watch on your name04 / In Antevo
Watch the name for new filings.
A free Antevo Trademark account watches one name: it checks the registers every day for new filings close to it and flags them, with a similarity score and who filed it. Where Antevo holds the publication date, it gives the opposition deadline from each office’s own statute.
Start a free watch on your nameSources
Where this comes from.
The counts behind the figures, the Federal Statistical Office’s bankruptcy figures and the primary sources for every legal point. Intelligence, not advice: nothing here is legal or tax advice, and your lawyer, notary or fiduciary confirms what a closure requires.