Business name vs trademark

Illustrative example; names are placeholders and the facts are invented. Company A GmbH is entered in the commercial register and trades under its name for two years without filing a trademark. An unrelated business then files COMPANY A with the IPI for the same services. The IPI does not check new marks against company names, and Company A cannot oppose the registration: opposition rests on an earlier trademark (MSchG Art. 31(1)). It can go on using the name to the extent it already did before the filing (MSchG Art. 14(1)); anything further is a question for its counsel. Had it filed first, the trademark right would have been its own (MSchG Art. 6).

The business name. A business name entered in the commercial register and published in the SHAB is for the exclusive use of the party that registered it. Anyone whose interests are injured by its unauthorised use can apply for an injunction and, where the user is at fault, sue for damages. (OR Art. 956)

Distinct across Switzerland. The business name of a company or cooperative must be clearly distinct from every business name of those legal forms already registered in Switzerland. (OR Art. 951)

The trademark. A trademark right is established on entry in the register and belongs to whoever files the mark first. Its holder can prohibit others from using a conflicting sign for the same or similar goods and services, including on business papers and in advertising. (MSchG Arts. 5, 6 and 13)

Where they meet. Entering your business name in the commercial register does not automatically protect it as a trademark, and it protects only to a limited extent against third parties using the name for their products. The IPI therefore recommends checking, before the entry in the commercial register, whether an identical or similar name is already protected as a trademark. (IPI, Starting a company)