A trade name from the Cafe Top 100?

An important first step for many business owners in the hospitality industry is choosing a name for their café or restaurant, for example. Looking at the 2016 Café Top 100, we see a diverse list of names. Nevertheless, several cafes and restaurants can also be found scattered throughout the country with the same or similar names, while they are not connected. Everyone can probably think of an example of this. So it is good to reflect on what is and is not allowed in this area.

Protection of the name as a trade name

The name under which a business, such as a café or restaurant, is operated is legally classified as a trade name. For a trade name, protection is automatically obtained by the mere use of the name for the enterprise. Registration in a registry is not required to obtain a right to a trade name. Therefore, the registration of a trade name in the Trade Register of the Chamber of Commerce is not decisive as to whether it is entitled to protection. What matters is that the name is actually used to indicate the business, for example by use on invoices, on the website, the menu and on the façade of the café or restaurant, before protection can be derived from it. From the moment the name is used, action can be taken against subsequent users of identical or similar trade names. But what criteria apply?

Infringement of a trade name

In general terms, it is prohibited by law to use a trade name that is already lawfully used by another person. In addition, it is prohibited to use a trade name that differs only slightly from an existing trade name. In both cases there is an infringement only if, as a result, public confusion between the two companies may arise.

To determine whether a new trade name is confusingly similar to an existing trade name, the first step is to assess how similar the trade names are. Is it exactly the same trade name or are there also differences? To assess the similarity between the two trade names, the distinctive part of the trade name must be considered above all. The fact that a part of the trade name is different or an additional word has been added to the trade name, for example, does not mean that there can no longer be any confusion. If the trade names create the same impression to the public, there may be confusion. For example, the trade names "Café De Kroon" and "Bar De Kroon" are not completely identical, but the distinctive part of the trade name is.

In addition to comparing trade names, the nature of the businesses and the distance between them is important. With cafés and restaurants, it is often assumed that they enjoy only local fame. This means that, in principle, several cafés or restaurants with the same name could easily be established in the Netherlands. The situation is different when a café or restaurant does enjoy national fame. As a result of the increased influence of social media, this may be the case more quickly than in the past. If there is national prominence, the distance between the catering establishments does not directly play a role. However, the nature of the catering establishment, for example a café or an upscale restaurant, and the extent to which the trade names are similar must still be considered. This will ultimately be used to assess whether the public could be confused.

Research required

The answer to the question of whether a new trade name is confusingly similar to an already existing trade name cannot yet be easily answered. Before making a final choice for a particular trade name, it is in any case wise to investigate whether identical or similar trade names already exist, which could pose a problem. Using the criteria mentioned above, an assessment can then be made. A café previously only known locally might become nationally known as a result of being included in the Café Top 100 and thus become a trade name with a larger scope of protection...