Company exclusivity
The company exclusivity is a principle of company law and means to that a new company in the same place of the existing name (company) clearly distinguish needs. This is necessary so that a mix-up can be excluded. The company has the function of clearly identifying a legal entity and distinguishing it from others.
Content of the principle
The company exclusivity relates only to current company names registered in Germany (including companies in liquidation), therefore no deleted companies, including the wording of the branches.
Both natural persons , partnerships and legal persons can invoke company exclusivity . The more the activities of companies overlap, the greater the risk of confusion. B. at:
- similar or the same industries
- Competitive relationship with each other (competitive situation)
- geographical proximity.
In principle, however, the use of personal names (e.g. Max Müller) by older companies cannot be forbidden to newer ones. However, the newer company is required to make it more clearly distinguishable by adding additions to the older one. The assessment criterion is the traffic perception as to whether a mix-up is easily possible.
The principle of company exclusivity mainly relates to protecting the public from confusion. The protection of other companies in the event of the same or similar names is only of secondary importance.
Legal regulations
| German Confederation | Germany | Austria | Liechtenstein | Switzerland |
|---|---|---|---|---|
| Article 20 ADHGB | Section 30 of the German Commercial Code | Section 29 UGB (Section 30 old HGB ) | Article 1016 PGR | Article 951 OR |
| Every new company must be clearly different from all companies that already exist in the same place or in the same municipality and are entered in the commercial register. | (1) Each new company must be clearly different from all companies that already exist in the same place or in the same municipality and are entered in the commercial register or in the register of cooperatives. | (1) Each new company must be clearly different from all companies that already exist in the same place or in the same municipality and are entered in the commercial register. | 1) A company registered in the commercial register may not be used as a company by anyone else in the country. | The company name of a trading company or a cooperative must be clearly different from all trading companies and cooperatives already registered in Switzerland. |
| If a merchant with a merchant already entered in the commercial register has the same first name and surname and wants to use the same name as his company, he must add an addition to this that clearly distinguishes him from the company already entered. | (2) If a businessman has the same first name and the same family name with an already registered businessman and he also wants to use this name as his company, he must add an addition to the company which clearly distinguishes it from the company already registered . | (2) If an entrepreneur with an already registered entrepreneur has the same first name and the same family name and if he also wants to use this name as his company, he must add an addition to the company that clearly distinguishes it from the company already registered . | 2) Where there is a risk of confusion with an already registered company, a distinctive addition must be made even if the new business owner has the same civil name as the older company was called. | |
| Article 21 ADHGB | Article 952 OR | |||
| The company must also be registered with the commercial courts responsible for the latter for the branch established in another location or in another municipality. If the same company already exists at the place or in the municipality where the branch is established, an addition must be added to the company, which clearly distinguishes it from the existing company. | (3) If the same registered company already exists at the place or in the municipality where a branch is established, an addendum corresponding to the provision in paragraph 2 must be added to the company for the branch. | (3) If the same registered company already exists at the place or in the municipality where a branch is established, an addition corresponding to the provision in Paragraph 2 must be added to the company for the branch. | 3) One company is clearly distinguishable from another in the country if its difference is recognizable by applying the care usual in business dealings. | 1 Branch offices must run the same company as the main office; However, you may add special additions to your company if these only apply to the branch office.
2 The name of the branch of a company whose registered office is abroad must also contain the location of the main office, the location of the branch and the express designation as such. |
| (4) The state governments can determine that neighboring places or municipalities are to be regarded as a place or a municipality within the meaning of these regulations. | (canceled in Austria due to non-use) |
Geographical scope
The scope of the principle of company exclusivity is limited in Germany and Austria to the same places or communities , while protection in Liechtenstein and Switzerland covers the entire country. In Germany and Austria, the actual seat of the company is used and not the entry in the commercial register or a court district .
Competition law
The protection of the name of companies through the principle of company exclusivity exists alongside other legal regulations, such as B. the law against unfair competition (UWG), personal rights or trademark rights . A company that is not entered in the commercial register (e.g. a foreign company that operates across borders in a member state of the Union ) does not receive name protection from company exclusivity. The company that is not registered in the domestic commercial register cannot obtain this protection against the company registered in the country, not even from the Paris Convention for the Protection of Industrial Property .
Web links
- Spiegel article: Secret of names - why companies are called what they are called
- decisions.ch decisions on Swiss company law
Individual evidence
- ↑ "New" company also refers to a changed company or one that has relocated.
- ↑ See e.g. B. BGE 101 Ib 363.
- ↑ For this purpose z. B. Consultation of the local chambers of commerce .
- ↑ For example: Articles 2 and 8 of the Paris Union Treaty (ParUV) of March 20, 1883.
- ↑ See: BGE. 79 II 305 (Federal Court of Switzerland), 4Ob304 / 58 (Supreme Court of Austria).
