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Why do people say ‘trade name’ when, in fact, they mean ‘trademark’?

When business people want to register a distinctive sign for building or expanding their corporate image, they come across terms like ‘trademark‘ and ‘trade name‘ that are often used as synonyms in the everyday language.

I usually explain that a trade name is a sign through which an entrepreneur, a self-employed person or a company, wishes to present themselves and make themselves known when carrying out a commercial activity; whereas a trademark identifies the goods or services provided by a company and distinguishes them from identical or similar competing products: it only requires the application for the registration according to one of the current 45 classes of goods and services of the International Trademark Classes.

Doesn’t it seem easy? Well, it is not…

– Hey, then, advise me: what do I have to register?

– Well, look, just keep it simple. First, register a trademark. Let’s see, what’s the name of the Law? Trademark Law, right? There you have the first clue: the law itself gives prominence to the trademark concept even in the title. How many trademarks are registered in Spain? More than 4 million… And what about trade names? Over 400,000… you do the math. In addition, if you want to register your name abroad and assert your right of priority, that is, request your Trademark in almost any other country within the next 6 months and ensure that the same application date as your Spanish trademark is acknowledged there, you will need a trademark, not a trade name. And I am not even talking about applying for a trademark through the Madrid System for the International Registration of Trademarks, which would allow you to extend a basic trademark application or registration abroad using the same documentation and in a single language and currency. Inevitably, you will need a trademark.

After blowing your mind with such overwhelming data, I will explain it again: do not worry, your company name will be legally protected after registering it as a services trademark in the corresponding class (advertising services in class 35, sale services in class 35, education and leisure services in class 41, architects and engineers services in class 42, etc.)

In fact, there are more and more authorized voices claiming for the elimination, due to redundancy, of the trade name concept from our regulations, considering that this type of registration does not exist in neighboring countries and that the successive laws on trademarks have been assimilating the requirements that both concepts had to fulfill, blurring the differences between them. Nowadays, the role that trade names played has been assumed by service trademarks, assimilating both perfectly. So, tell me: What does your company do? A restaurant? Well, that’s a service trademark in class 43. And you’ve invented a dessert named after…? Well, there’s a class 30 product trademark for you. I bet it’s crystal clear for you now.

By Cristina Gilabert, Lawyer and Manager of the Alicante Office of PONS IP

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