Once the application for registration of a registered name is filed to BRA, this institution questions and examines, ex officio, if the Register already contains the same or a similar name of another company or entrepreneur with the same or similar predominant business activity. According to BRA rules, two names must differ from each other by at least 3 characters, bearing in mind that generic words within the name are not relevant for that difference. Therefore, words such as trade, company, group, Trans, corporation (korporacija), cellar (podrum), club (klub), as well as other words that describe business activity of the economy entity, will not establish the required difference.
The question that logically follows from the above stated is, what does that mean? Precisely, words such as trade, company, group, Trans, corporation (korporacija), cellar (podrum), club (klub), as well as other words that describe the business activity of the economic entity, will not establish the required difference. Thus, these words represent too generically defined terms, which are world-renowned and globally accepted, and cannot be taken as a sufficient difference, when it comes to the registration of a business name. Namely, does words are not enough distinctive.
However, the Law very generously left to BRA to decide whether a certain name is similar to some other economic entity’s name and if there is a possibility for confusion. This statutory norm creates legal uncertainty to those who want to protect their registered name, as well as to those who do not want to bare unexpected consequences of harming other entity’s registered name, after their registration was initially approved by the BRA. Registrar’s highly inconsistent practice in approving registered names of economy entities consists of numerous different examples that are contrary to the law and rules of BRA. This practice is so inconsistent that not even trying to categorize it in a few examples would be enough to illustrate how differently the registrar acts in similar situations or to find alleged reasons and explanations for such conduct.
Predominant business activity is also a relevant factor when deciding whether the conditions for registering certain name are met. Therefore, if the prevailing business activity of two entities is similar, or even the same, the criteria becomes even higher.
Furthermore, the distinguishing factor is also a place of entity’s headquarters. Consequently, if somebody wants to register a name similar to other entity’s name, which has the same or similar business activity, and, on top of that, those entities would operate in the same place or territory, then that registration would have to meet the highest criteria of distinctiveness. Hence, registrar must evaluate similarity of two aspects, names and business activities, separately, in order to evaluate their final result.
These criteria lead to too many different and unpredictable results in registrar’s decisions. Apart from that, some of the criteria do not make much sense. For example, economic entities can change their headquarters address. Likewise, entities can open their representing offices in other places. What happens if the registrar approves two similar names in same or similar business activity in different places if they eventually start their business activity in the same territory?
Therefore, this system of evaluating the possibility to register entity’s name creates truly insufficient amount of trust in protection of entity’s name by registrar.
How inconsistent the registrar’s practice is, can be best demonstrated by an example.. Registrar decided that conditions for registration were met in both: Diet and Deit, Drvo – eksport and Eksport – drvo.
Furthermore, it remain unclear how is it possible that the registrar approves registration of both: Pera & Marko DOO Novi Sad, for ,,other unlisted building activities” (code 4399 at the Classification of activities) and Održavanje (engl. Maintaining) Marko & Pera DOO Novi Sad for “cleaning and maintaining buildings”? This is extremely odd, specially bearing in mind that generic words and those which only indicate business activity are not a factor of distinctiveness.
Assigning such arbitrariness to the registrar leaves a place for mistakes, as well as for misuse of existing rules. By frequent and uncritical registration of similar names of different economy entities, both clients and economic entities could be brought to danger and inconvenience.