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1 - Business names
Business Law and Practice (LW7104)
Northumbria University
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Business Law and Practice – Lecture 1
Business Names pt 1 – Commercial considerations and protections
Commercial considerations
- Will the name reflect individuals involved, product or both?
- Will the name reflect existing goodwill in the name? o When partnerships or sole traders incorporate as a company or another company is bought
- How will the name fit in to the existing market?
- How will the business protect the IP in the name?
Avoiding IP infringements - Avoid adopting things that are the same or similar to existing business – especially if they provide similar services and operate in a similar geographical area o Two reasons Business will want its own distinctive brand Avoid claim of IP infringement (registered trademark infringement or passing off) - Should always carry out searches to check what businesses exist already o Searches: Registered trademark search at IPO Google search Yellow pages Companies House name search
Protecting the name/brand - Register a trademark for name and/or logo - Register a domain name - Incorporate a company with that name to prevent other doing so (only possible if there is no company with that name already) - Passing off
Passing off
- Even if a business has not registered a trademark, it may have built up substantial goodwill and have unregistered trademarks
- Passing off is benefitting from another’s good or services
- Three requirements o Goodwill – intangible but often very important to the value of a business o Misrepresentation – customers have to be confused – think they are getting the goods/services of the claimants brand – when actually they are not Does not need to be intentional o Damage Claimant needs to have or have reasonable chance of suffering a loss
- Reckitt & Coleman Products Ltd v Borden Inc. [1990]
o Squeezy lemon shaped bottle o Product was slightly different o Scope for customers to buy the defendants product through mistaking it was the claimants o HOL sided with the claimant Not just the name or logo – the full getup/feel of the product
Trademarks
- Registered trademark gives more protection than an unprotected trademark
- Must specify the relevant class or services with the IPO
- Receive injunctive relief against infringement o Use of trademark without permission – receive an injunction to stop this
- Trademarks are good where they are not descriptive o Words that just describe the business – often rejected o Logos that don’t immediately show what the company does Nike Adidas McDonalds
- Separate to copyright – not the same o If I write a book I have copyright to that – it isn’t registered anywhere
Domain names - Register in all relevant jurisdictions o .co - Generic top level domain o .com o .net
Business Names pt2 – Legal Regulations of Business Names
Choice of name – legal considerations
- Sole trader?
- Partnership?
- Company?
- LLP?
Sole traders and partnerships
- Not registered anywhere – no requirement to register the name anywhere
- Companies Act 2006
- The Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2014
- Need to consider o Whether the name is permitted, restricted or prohibited
1 - Business names
Module: Business Law and Practice (LW7104)
University: Northumbria University
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