To stand out from the competition, the company uses a unique name and its own symbols. The right to a company name and commercial designation is regulated by the Civil Code of the Russian Federation (chapter 76). They are designated as means of individualization and are used to distinguish the products and services of a particular enterprise.
Definitions
A company name is a name under which a legal entity carries out any activity. This means of individualization appears in the organization in the first place. It consists of two parts:
- indication of the legal form (LLC, ZAO, PAO, etc.);
- company name (for example, Gazprom, MTS, Metallservice).
In accordance with the Civil Code of the Russian Federation, a company may use the full or abbreviated name, as well as register the name in a foreign language.
A commercial designation is a marketing definition that is not a brand name, but is also used to highlight commercial and industrial enterprises, their goods and services.
What is the difference?
Although these concepts are similar to each other, do not confuse the brand name and commercial designation. The differences between them are as follows:
- The company name is registered with state bodies, is used in the constituent documents and when creating a new legal entity, the designation is not.
- The company may not use a commercial designation (sometimes it is not even included in the constituent documents), but it must have a name.
- The name characterizes the type of enterprise and, as a rule, is used in relations with partners, when concluding contracts, etc. A commercial designation is used to individualize the enterprise and appears in advertising, on signboards and on the products themselves.
- The right to trademarks can be transferred to another person, but the right to the official name of the company is not.
- Only commercial organizations (partnerships, business entities, municipal and state enterprises) can be owners of a company name. The range of entities that can use a commercial name is much wider. This includes any legal entities (including non-profit organizations), as well as individual entrepreneurs.
Most often, these means of individualization coincide, but sometimes companies use different brand names and commercial designations. Example: LLC Golden Swan and a network of stores Domovenok. Moreover, one legal entity may use several such “unofficial” names in its activities.
When the right to a company name and commercial designation arises
The name of the company is mandatory to be registered with state bodies at the same time as a legal entity is added to the tax base. There is no separate procedure for this.
It is worth emphasizing that tax officials do not check the uniqueness of a company name - that is, there is a risk of several companies with the same name appearing. The right to this means of individualization arises upon registration, and ceases after the liquidation of the company or the official change of name.
As for the commercial designation, here everything is different. It is not included in the constituent documents or in the register of legal entities. persons. It is subject to the exclusive right that arises at the time of its first actual use. Registration is not needed.The exclusive right is terminated if the owner does not use the designation for more than 1 year.
Confirmation of the right to a commercial designation
In the event of a dispute, it is desirable that the owner of the company have documented evidence of the use of a particular sign. Any form, product or promotional material on which it was indicated may serve as evidence.
It should be borne in mind that not every sign or store name fits this definition. In order for a certain mark to be considered a commercial designation, it must have sufficient ability to distinguish a company from competitors, and also be known in a certain territory.
Requirements
The Civil Code puts forward a number of requirements for the selection of a company name and commercial designation. So, in Art. 1473 indicated that jur. the person must have 1 full and 1 abbreviated name in Russian. If the company uses a foreign name, it should be written in two versions (original and transcription).
The same article of the Civil Code of the Russian Federation provides a list of elements that cannot be part of a company name. These include:
- Abbreviated or full names of other states, as well as derived from them words.
- The official names of the Russian government bodies (both full and abbreviated).
- Names of various public associations, as well as intergovernmental and international organizations at various levels.
- Words and designations that contradict the public interest, the principles of morality and humanity.
Also in the law there is a reservation regarding the mention of belonging to Russia or the subjects of the Russian Federation. State unitary enterprises, as well as companies that have received permission, can use the country in their name. When revoking a license, an organization must, within 3 months, make appropriate amendments to the text of constituent documents.
If the company name does not meet the described requirements, the body registering legal entities may sue the company and force it to be changed by force.
Requirements for commercial designations are indicated in Art. 1538 and Art. 1539 of the Civil Code of the Russian Federation. In order for this or that sign to be attributed to similar means of individualization, the following conditions must be met:
- Sufficient distinguishing features, the ability to really identify the organization and its products / services.
- Local fame. That is, the use of a certain sign by an entrepreneur should be known to consumers within a certain territory.
- A commercial designation may not duplicate a company name.
What you should pay attention to? The commonly used names of goods and services ("Products", "Barber") cannot serve as a commercial designation. Also, intellectual property rights will not extend to elements that somehow characterize the enterprise’s products, their quality, place of production or sale. That is, a commercial designation may not be such names as "The fastest Internet" or "Woolen shawls from Orenburg."
Another limitation is the prohibition of names that mislead consumers regarding the affiliation of a company to a specific person. That is, it should not be too similar to the means of individualization of other companies. In accordance with the Civil Code of the Russian Federation, a person who violates this rule is obliged, at the request of the owner of the rights, to stop using this sign and to indemnify.
A commercial designation can be used to identify several businesses. However, one enterprise cannot use several such marks. They also can not be used in the constituent documents and during the registration of the company.
Transfer of rights
Unlike the name of the company, the right to its commercial designation may transfer to another person - for example, when renting, selling the company or in the manner of universal succession. What is important - it transfers to the new owner only as part of the organization for which it is used. It should also be noted that if the same designation is used for several enterprises, when transferring the right to another person, the previous owner can no longer use it.
The ratio of brand names and commercial designations
The answer to this question is contained in Art. 1476 and Art. 1541 Civil Code. According to the law, the right to a company name of a subject and a commercial designation exist independently of each other. What does it mean? The owner can use the official name of the organization or its individual elements in other means of individualization (commercial designation, trademark, etc.). However, all these intellectual property are protected separately from each other.
A responsibility
What threatens companies that illegally use someone else’s name or designation? Legal entities that violated the rights to these means of individualization can be liquidated in court or fined 1-15% of the total revenue for the sale of goods with a foreign sign (but not less than 100 thousand rubles).