Setting up to go into business can be a very exciting time for an entrepreneur as it holds all the promise of a bright future. Much of this excitement is deciding on the name of your business and one which you hope will be elevated to the heights of such other famous and well-known brands we have all come to love. Part of this exciting journey is probably the process of setting up and registering your new company. Included in this process is the registration of your company name.
It does sometimes happen that eager entrepreneurs register a company name that is identical or confusingly similar to someone else’s name or their brand name (what we lawyers would call a “trade mark”). This unwitting mistake could land you in hot water, so care must be taken before rushing to register your company name. If you don’t, you may have spent a lot of money on marketing and brand establishment that may all be for nothing when you receive a cease and desist letter from the lawyer of a trade mark owner or a notice from the Commission telling you to abandon or change your name.
As a general rule, you may not register a name for a company where such a name belongs to another company or is a trademark or a well-known trademark of another unless you have such trademark owner’s authority to do so. You may also not register a name for your company that is confusingly similar to the name of another company or its trademark and, also, register a name where the words, expression or a mark is protected by other legislation such as the Merchandise Act.
The Companies Act provides that any interested party may apply to the Tribunal for a registered company name to be removed or amended on the register where such name does not comply with the provisions of the Companies Act such as the cases discussed above.
Upon consideration of such an application and upon a finding that the registered name is objectionable in that it does not comply with the Companies Act, the Tribunal may make an administrative order directing the Commission to amend the name, remove it from the register or call on you to apply for the registration of a new name.
The troubles for you may not, however, end at this point. If the wrongful use of the name violates another person’s registered or well-known trade mark, it remains open for such trade mark owner to also bring trade mark infringement proceedings against you and this may, in turn, result in a potential claim against you by the trade mark owner.
This article is not aimed to dampen the entrepreneurial spirt but to encourage you to seek professional assistance from your lawyer to reduce the risk of someone launching an application of a name objection against you when, ideally, you should rather be spending time making your name a great and powerful brand.
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