Like cases of trademark infringement, a situation may occur where one company wants to call itself by the same or similar name as its competitor if, for example, that name is already established and well-known on the market. In that case, there is a classic unprincipled intention to use the reputation of a competitor, which simultaneously harms the competitor.
We have previously written about a successfully ended dispute in favor of our client Petroprocess, which was conducted specifically because of the unfair competition due to the similarity of the business name. In this procedure, the court found that due to the identical names of companies, there was confusion on the market, and prohibited the defendant from using part of the name in the form of the word “Petroprocess” in his business name. This decision created a new case law, not only in the area of unfair competition but within the area of intellectual property rights as well. This is because the trade name is considered part of industrial property in accordance with Article 8 of the Paris Convention for the Protection of Industrial Property.
Nevertheless, unlike disputes over trademark infringement and other intellectual property rights, disputes regarding the protection of a business name are conducted before the applicable courts in accordance with general regulations, and not before the competent Commercial Court in Belgrade (that is, the Higher Court in Belgrade). This remains a problem in practice, given that the business (trade) name belongs to the area of intellectual property, therefore the need to entrust the resolution of these disputes to courts that specialize in intellectual property rights is justified.
Company Law explicitly stipulates that the name of one company must not be the same as the name of another company. In order to establish fair market competition, but also to protect consumers and their right to truthful informing, the name of one company must differ from another to the extent that it does not mislead about the identity with that other company.
However, due to different rules and criteria when deciding on sufficient differences between two company names compared to differences in trademarks, it is not uncommon for the Business Registers Agency to allow the registration of a company whose name violates the name of a competitor. Therefore, a competitor may file a lawsuit against a company that has chosen the name unfairly and request it to change the name of that company and/or compensate for the damage.
This lawsuit is time-limited, and it is necessary to make sure that it is filed within three years from the day of registration of the name of the company that violates the stated rules.
Finally, Company Law clearly brings rules about naming the company into connection with unfair market competition, by clearly stating that this provision does not affect the rights of a conscientious and fair company to exercise its rights under the regulations on unfair competition (Law on Trade) and provisions on regulations on the protection of intellectual property rights (namely, trademarks).