company
A company (abbreviated: Fa .; From Latin firmare , `` authenticate '', `` fasten '') is the name under which a merchant conducts his business, signs and under which he can sue and be sued ( Section 17 HGB ). One also speaks of a company name . Freelancers and small businesses, on the other hand, use their real names or use a business name in business life . In trademark law , the company and business name are assigned to the concept of the company name , Section 5 (2 ) of the Trademark Act .
The company is an integral part of corporate identity (corporate identity) of corporations and larger medium-sized companies . If a company is taken over, the company can be retained if the previous owner agrees - or in the event of death, his heirs ( § 22 HGB).
The choice of the company as well as the legal form and company additions are among the fundamental strategic decisions when starting a company. Company and company additions are an interesting means of psychological segmentation for trading companies.
German law
According to German commercial law, only merchants are authorized to run a company . Other traders can use a business name. Such a trade must be entered in the commercial register. The entry is only of declaratory significance for the company. The company must always contain the legal form or the commercial addition ( see below ) as an addition (cf. §§ 17 ff. HGB).
Company principles
Company addition
In any case, the company must contain an addition that indicates the legal form (or a generally understandable abbreviation) of the company, e.g. B. e. K. ( Section 19 Paragraph 1 No. 1 HGB), Muster OHG ( Section 19 Paragraph 1 No. 2 HGB), Sample GmbH ( Section 4 GmbHG ), Muster AG ( Section 4 AktG ).
Company clarity
The company name must be suitable for identification (so-called "name function") and be distinctive ( Section 18 (1) HGB). The name function is missing e.g. B. at a company formed from non-Latin letters or pure symbols. Distinctive character is lacking in pure generic names, e.g. B. "Consulting GmbH" without any further identifier. The graphic design of the typeface is irrelevant in terms of name and therefore also in terms of company law. The registry court is therefore not bound by the character formatting that the company chose when registering for the commercial register. In principle, however, the company is free to use the company's spelling on which it is based in legal transactions.
Company truth
The general principle of company truth was the supreme principle of earlier company law; then it had to be clear to outsiders who the company owner is and what type of company is involved. The principle remains important after the introduction of the current company law in 1998, but is less valid. Today, company truth means: The company must not be misleading, that is, capable of “creating a deception about the type and scope of the business or the circumstances of the business owner” ( Section 18 (2) HGB). According to Section 39 (1) KWG , the use of the designations “bank”, “banker” or “Sparkasse” in the company name is generally only permitted for credit institutions that have a banking license under Section 32 KWG.
Company exclusivity
Each company must be different from other companies that are already registered in the commercial register and are located in the same municipality ( Section 30 (1) HGB). See main article: Company exclusivity .
Firm consistency
The previous company can be continued even if there is a name change (e.g. marriage), a transfer of the company (e.g. purchase, inheritance) or a change in the number of shareholders (§ § 21 ff. HGB). To avoid confusion, the name alone cannot be sold when the company is handed over; this can only be bought if the industry is retained ( Section 23 HGB).
Corporate public
Every merchant has to have his company, the place (seat) and the domestic business address entered in the commercial register ( § 29 HGB). In every business letter , the company must be named with the addition of the legal form , the deliverable address and other information.
Company unit
According to the principle of company unity, a businessman may only run one company for one and the same company; derived from jurisprudence from § 17 HGB. Without prejudice to this, he can offer his products under different brands .
Company types
Personal company
As a company, a sole trader gives his first and last name or a company gives the name of one or more partners, e.g. B. Henkel KGaA after the company founder Friedrich Karl Henkel .
Fantasy company
Any expression is freely chosen as a company, e.g. B. Infineon or Amazon .
Property company
As a company, the company's activities are objectively described, e.g. B. Bank corporation.
Mixed company
A combination of personal, fantasy and / or material company, e.g. B. Tchibo - Carl Tchilling Hiryan coffee beans.
As with brand names , internationally functioning art terms are increasingly being used in the course of globalization , which firstly can be pronounced in as many languages as possible, secondly are as unoccupied as possible worldwide (e.g. no hits in Internet search engines before the company name), thirdly positive in every language Awaken associations ; z. B. “ Novartis ”, which combines the Latin expressions for new and art.
Company accessories
Laws such as the Commercial Code stipulate that a company must contain an addendum from which the legal form or the merchant status of the company can be seen ( Section 19 ).
In contrast, no company has a civil law partnership (GbR), as it is not a trading company . You can only use a company-like so-called business name.
Additions to the company that provide information about the company's economic situation are of interest to creditors and customers. The addition “i. In. "Or" i. IN. ”Indicates that bankruptcy proceedings have opened. The addition “i. L. “( in liquidation ) indicates an ongoing liquidation procedure to terminate the company.
Company protection
Register court company abuse proceedings
The registry court can ensure ex officio that an inadmissible company is no longer used. In accordance with Section 37 (1) of the German Commercial Code (HGB), he has the option of threatening a fine in the event that the company is not deleted quickly. The registry court can already act in the event of a purely objective violation of company law, so another company law does not need to be violated. The initiation of company abuse proceedings is at the discretion of the court, so that it can tolerate illegal company use after weighing up the conflicting interests. The procedure according to Section 37 (1) HGB is not affected by the filing of a lawsuit against the inadmissible use of the company in accordance with Section 37 (2) HGB. However, in this case the company abuse proceedings can be suspended ( Section 381 FamFG ).
Private law injunctive relief
According to Section 37, Paragraph 2, Clause 1 of the German Commercial Code (HGB), anyone who has infringed their rights through the unauthorized use of one company by another can demand that the company refrain from using it. In addition to the violation of absolute rights , any further impairment of a legal interest of an economic nature comes into consideration. Section 37 (2) HGB does not grant a right to initiate company abuse proceedings under Section 37 (1) HGB.
The privilege to cease and desist under Section 37 (2) of the German Commercial Code (HGB) does not require any fault; therefore, claims for damages based on other regulations remain unaffected, Section 37 (2) sentence 2 HGB. Such claims under tort law ( Section 12 , Section 823 (2) BGB in conjunction with Section 37 (2) HGB, Section 826 BGB), claims for damages under trademark law ( Section 15 (5) in conjunction with Section 5 (2 ) Trademark Act ) and the competition law damage claim ( §§ 3, 5 and 9 UWG) into consideration.
In addition to the injunction claim standardized in Section 37 (2) sentence 1 of the German Commercial Code (HGB), injunctive relief claims can also arise from general civil law ( Section 1004 (1) BGB analogously in conjunction with Sections 823 (1), 12 BGB), trademark law (Section 15 Paragraph 4 in conjunction with Section 5 Paragraph 2 Trademark Act) and competition law (Sections 3, 5, 8 UWG).
Austrian law
For the company principles and types, what has been said for Germany applies accordingly, whereby the regulations of §§ 17 ff. UGB , in particular § 19 UGB, apply. The following are permitted company additions:
| Corporate form | Legal form additions | |
|---|---|---|
| Until December 31, 2006 | From January 1, 2007 (entry into force of the commercial law reform) |
|
|
Sole trader (formerly) sole proprietor (since January 1, 2007) |
no legal form addition |
eU registered entrepreneur registered entrepreneur |
|
Open trading company (formerly) Open company (since January 1, 2007) |
OHG no legal form addition |
1st floor |
| Limited partnership |
KG no legal form addition |
KG |
| Open acquisition company | OEG | became an open society |
| Limited partnership acquisition | KEG | became a limited partnership |
| Company with limited liability | GmbH or Ges.mbH | GmbH or Ges.mbH |
| Corporation | AG | AG |
| cooperative | registered cooperative | registered cooperative |
| European economic interest group | EEIG | EEIG |
|
European Society (Societas Europaea) |
SE | SE |
|
European Cooperative Society (Societas Cooperativa Europaea) |
SCE | SCE |
Swiss law
Under Swiss law, the company selected the name of the company carrier . The content of the company must correspond to the truth, must not cause any deception and must not run counter to the public interest (Art. 944 Paragraph 1 OR).
one-man business
According to Art. 945 OR, the company of a sole proprietorship must contain the surname of the owner. The use of an addition that indicates a corporate relationship is not permitted (Art. 945 Paragraph 3 OR).
The company protection of a sole proprietorship is limited to the place of economic activity. If a sole proprietorship is founded by a person with the same surname in the same place, it must be clearly distinguishable from the existing company by adding the first name to it (Art. 946 OR)
General, limited and limited partnership
The company of a collective , a limited partnership or a partnership limited by at least must contain the surname of a partner with unlimited liability. The company may not contain the name of a partner with limited liability or a resigned partner. If a person with limited liability is listed in the company, he / she is now liable to the creditors in an unlimited amount. The company must also have an addition such as & Co. , & Partner , & Cie. or & Sons (Art. 947 and Art. 948 OR), unless all partners with unlimited liability are listed. If the latter is the case, it is not permitted to use an addendum that indicates a corporate relationship. The separate identification of the limited partnership required in Germany is not necessary in Switzerland. The abbreviation KG, which is prescribed in Germany for the limited partnership, is not permitted in Switzerland because it is not common and there is a risk of confusion with the general partnership, which is similar to the German open trading company (OHG).
With these three companies, company protection is also limited to the place of economic activity.
Aktiengesellschaft, GmbH and Cooperative
Stock corporations , limited liability companies and cooperatives can freely choose their company according to Art. 950 OR, but must always include the legal form. The company of one of these three corporate forms must be clearly different from any other company registered in Switzerland in the same legal form (Art. 951, Paragraph 2 OR). In addition, purely technical terms such as cleaning AG are prohibited.
Web links
- Spiegel article: Secret of names - why companies are called what they are called
- decisions.ch decisions on Swiss company law
- zefix.ch Central company index in Switzerland in four languages
Individual evidence
- ↑ Hans-Otto Schenk: Psychologie im Handel , 2nd edition, Munich-Vienna 2007, p. 99, ISBN 978-3-486-58379-3
- ↑ Law on the new regulation of commercial and company law and on the amendment of other commercial and company law provisions (Commercial Law Reform Act - HRefG) of June 22, 1998 ( Federal Law Gazette I p. 1474 ).
- ↑ see e.g. B. BGH , NJW 1991 , 2023
- ↑ If the GbR were to operate a trade within the meaning of Section 1, Paragraph 2 of the German Commercial Code, it would no longer be a GbR, but rather an OHG (cf. Section 105, Paragraph 1 of the German Commercial Code).
- ↑ See OLG Cologne , BB 1977 , 1671; BayObLGZ 1989, 44, 50.
- ↑ See OLG Hamburg , BB 1973 , 1456; BGH , NJW 1991 , 2023
- ↑ a b Instructions to the commercial register authorities for the examination of companies and names. (PDF; 153 kB) Swiss Confederation, April 1, 2009, archived from the original on December 16, 2011 ; Retrieved October 27, 2012 .
