Protect your company: Domain law, trademark law and name law in Germany

Choosing a company name is a strategic decision for founders – creatively, but above all legally. Domain names, brand names and company names must not only shape the identity of the company, but must also be conflict-free and protectable within the German legal framework. In Germany, name law, trademark law and domain law are intertwined. Anyone who uses the desired name carelessly risks expensive warnings or even a necessary renaming shortly after the company is founded. This article takes a practical look at how these areas of law are interrelated, how to systematically check the availability of a name and what steps you can take to protect your own company name by registering a trademark, company name and domain name. A checklist shows the most important steps – from the DPMA register to Whois and the company register – to avoid warning traps at an early stage. The whole thing from a German perspective, factual and motivating, so that the choice of name lays a solid foundation for the future brand.

Domain law, trademark law and naming rights – an overview

Three legal levels are relevant when developing a company name: domain law, naming law and trademark law. Each of these offers its own protection mechanisms and sets its own rules – but they overlap as soon as several parties want to use the same or similar names. The three areas and their interplay are explained below.

Domain law: “First come, first served” with limits

Domain law itself is not a separate law in Germany, but rather a principle from allocation practice: whoever registers a domain first may use it. Each Internet domain is unique, according to the priority principle (“first come, first served”). When registering, the registry ( DENIC for .de domains) does not check whether the desired domain name infringes third-party rights – it assigns the address that is still free on a purely technical basis. This means that, in principle, any free combination of letters can be secured as a domain. However: Ownership of a domain does not mean a comprehensive right to the name itself. If the chosen domain name violates the naming rights or trademark rights of third parties, there is a risk of legal conflicts. In such cases, use can be prohibited or the domain can even be withdrawn by a court. Domain law is therefore closely linked to trademark law: The domain is like a digital property that can be purchased – but whether it can be built on is determined by the rules of trademark and name protection.

Collisions with well-known names are a frequent stumbling block in domain law. For example, case law has ruled that in the case of the domain “namenhafter-konzern.de”, an unknown private individual must take a back seat to a well-known company. In other words, if a company has a well-known name (e.g. a famous brand or historical company), it may have a better claim to the domain with the same name than a duplicate name that happens to be registered first. For example, a private domain holder had to surrender “shell.de” because Internet users intuitively expected the website of the well-known Shell group – despite the same surname on the private domain holder’s side. However, this exception only applies if the domain name is well known. As a rule, the priority principle applies between private individuals and companies of the same rank: whoever registers first, uses first.

In addition to trademark and name conflicts, there are further limits: City and authority names should not be registered by unauthorized persons. Cities, municipalities or government agencies have a right to a name that is worth protecting – courts have ruled in favor of the city of “Heidelberg”, for example, that heidelberg.de remains reserved for the city. The same applies to official institutional names(police, federal government, etc.) or party names – their unauthorized use as a domain can be prohibited. In short: Domains are freely selectable, but not free of rights. Before registering, it is important to check whether the desired name is legally unobjectionable as a domain – especially with regard to trademarks and names.

Right to a name: Protection of your own name (§ 12 BGB)

The right to a name under Section 12 of the German Civil Code protects the name of a person or company from unauthorized use. Everyone has the right to use their own name without interference. Companies also enjoy name protection for their company (the official business name) under Section 12 BGB. Important: This protection arises automatically through the existence and use of the name in legal transactions – registration is not required. As soon as a company appears under a certain name and becomes known, no third party may use the same name if this creates confusion. In the event of infringements, the defense claim under Section 12 BGB applies: The owner of the name can demand that the other party refrain from using the name and take measures to remove it.

The right to a name comes into play above all when there is no registered trademark. For example, many smaller companies are not registered as trademarks, but still enjoy name protection in their industry or region. The following applies: having the same name alone is not automatically illegal – in Germany, different people or companies do have the same name. It becomes unlawful if the use by a third party creates a risk of confusion or impairs the interests of the authorized bearer of the name. A newly founded company may therefore not simply name itself the same as an already established company in the neighborhood; the older company could invoke its naming rights.

In the commercial sector, however, the right to a name is overlaid by special trademark law: as soon as a name is used as a commercial designation, the rules of trademark and competition law also apply (more on this in a moment). Nevertheless, Section 12 BGB remains a catch-all provision. Personal names of celebrities in particular are protected by naming rights, even if they have not registered a trademark. Anyone who uses the name of a famous person or company as a domain or company name without authorization is generally in breach of Section 12 BGB. Founders should therefore avoid naming their company after existing people or well-known institutions – even if no trademark exists. The right to a name offers basic protection that you can invoke, but you can also come into conflict with it if you choose someone else’s name.

Trademark law: Exclusive protection through registration (or use)

Trademark law (Trademark Act) provides far-reaching protection for names and signs in commercial transactions. Trademarks are signs (words, logos, slogans, etc.) that distinguish the goods or services of one company from those of others. A company name can be protected as a trademark – typically as a word mark, possibly also as a word/figurative mark if it includes a logo. The strongest trademark protection is obtained through registration with the German Patent and Trademark Office (DPMA) for the whole of Germany (or through EU-wide registration with the EUIPO). Upon registration, the owner acquires the exclusive right to use the trademark for certain classes of goods and services. Others may not use an identical or confusingly similar sign in this area. In the event of infringement, there is a risk of injunctive relief and claims for damages under the Trademark Act.

It is important to note that the trademark office only examines formal grounds for refusal (such as lack of distinctiveness or descriptive terms) when the application is filed. It does not check whether similar trademarks already exist – the applicant must research this himself in advance in order to avoid conflicts. Trademark protection takes effect from registration (the application itself is not quite enough, but it sets priority) and is initially valid for ten years, but can be extended indefinitely. Company logos – i.e. the name under which a business operates – also enjoy trademark protection under Section 5 MarkenG without having to be registered as a trademark. The prerequisite is that the name is distinctive and is used as a trademark in the course of trade. This so-called trademark protection through reputation arises through use: If a company name has established itself in the industry or region as the name of a certain company, no competitor may copy it. However, proving such a reputation is often difficult and costly in the event of a dispute. It is therefore advisable to register an important company name as a trademark if possible, instead of relying solely on unwritten trademark protection.

Trademark law and naming law exist side by side in the case of company names. Both are often relevant: A company name can be protected simultaneously as a trademark (for business purposes) and as a name under the German Civil Code (as part of identity). There is no strict order of priority – a registered trademark is not per se “stronger” than an older name right, and vice versa. Conflicts are resolved on a case-by-case basis according to priority, likelihood of confusion and known rights. This means for founders: The earlier and more comprehensively your own name is secured, the better. A trademark offers the greatest possible protection radius – far beyond local recognition.

Interaction and conflicts of property rights

The three areas of protection mentioned are intertwined if several actors use similar names. In practice, a few principles can be established:

• Domains are unique and globally visible, but the domain owner has no absolute right to the name. The decisive factor is who has existing rights to the name. Example: If company A has registered the name “X” as a trademark and person B registers the domain “x.de”, A can demand that B refrain from using it – at least if B cannot assert its own right to “X”. Conversely, if B registered and used the domain long before the trademark registration, A cannot simply demand that the domain be returned. In this case, it would depend on whether B has possibly acquired its own trademark rights through use or whether the registration was only made in order to pre-empt A (keyword: bad faith registration). These constellations show: Priorities play a major role. Whoever establishes a right first (be it through trademark registration or through well-known use) has a better chance in the event of a dispute.
• Trademarks vs. company names: The name of a company entered in the commercial register (the company) is protected within the registered region. A trademark applied for later cannot easily dispute the name of this locally older right as long as the older company is only active regionally. However, nationwide trademark protection may mean that the local company may not use its name beyond the region. Conversely, an older company name that is known throughout Germany can also override a younger trademark (via Section 12 BGB or Section 5 MarkenG), even if it is not registered as a trademark. As trademark rights are territorially limited (German trademark is valid in DE, EU trademark in EU), geographical overlaps can also become relevant: A domain “meinname.de” can be accessed worldwide, but perhaps someone in Austria has a trademark with the same name. Although the Austrian trademark owner cannot have the .de domain deleted under German law, there could be problems if the .de website is also used for business transactions abroad. Conclusion: There is no simple hierarchy for name collisions. What counts is familiarity, temporal priority and the type of use.
• Likelihood of confusion and industries: Trademark rights and business names grant protection primarily within certain industries or product areas. Two companies could happen to have the same name without knowing about each other – for example, “Phoenix” as a local craft company and “Phoenix” as a software brand – and there would initially be no collision as long as they operate in completely different sectors. However, if they come into conflict or the name becomes so well-known that confusion arises, there is potential for conflict. Famous brands also enjoy extended protection across industry boundaries: a start-up that would call itself “CocaCola Consulting” today would have problems even in another industry due to the brand’s reputation. As a general rule, founders should choose a name that is clearly independent and not reminiscent of established names – this minimizes the risk of conflicts from the outset.

Overall, the following applies: domain law, trademark law and name law must be considered on an equal footing. In the event of a conflict, you should check who had which right first and how strong this right is (scope of trademark protection, public awareness, etc.). A guideline can be derived from this for your own project: Secure all relevant property rights in parallel. Ideally, a founder should register the desired domain and register the name as a trademark and do business under this name. Domain, name and trademark law then go hand in hand, so to speak, and you have a right of defense against imitators at all levels. This prevents you from being caught “halfway” – for example by someone who does not have the domain but suddenly registers a trademark on the name. The following sections therefore show how to do research before choosing a name and then protect the company name by registering it.

Check availability of the desired name (checklist)

Careful research is essential before a name is officially used or registered. Founders should proceed systematically to ensure that the desired company or brand name is freely available and does not infringe any third-party rights. The following checklist will help you to check all relevant sources step by step:

1. Carry out a trademark search: Check whether the name (or similar designations) is already registered as a trademark. The DPMAregister database of the German Patent and Trade Mark Office can be used for this purpose – here you can search for word marks free of charge. It is also advisable to take a look at the EU trademark register (EUIPO, for EU-wide protection) and the international WIPO Global Brand Database, especially if foreign markets could be relevant later on. It is important to look for identical and similar spellings, including spelling variants, plural/singular or compound words. If identical or confusingly similar trademarks are found in relevant classes of goods or services, the name should be discarded or at least the risk should be legally assessed.
2. Check the company name in the commercial and company register: The next step is to search for the name in public company directories. You can find out whether there are already companies with this or a similar name via the online search of the company register (maintained by the Federal Gazette) or directly at the electronic commercial register. It is often sufficient to enter the keyword: for example, if the desired name is “Sunflux”, a search will show whether a Sunflux GmbH, Sunflux AG etc. exists anywhere. Regional IHK company directories or simply a Google search with the term plus words such as “GmbH” or “Firma” can also provide clues. Important: In Germany, two similar companies in the same local court district may not have the same name. However, in the case of supra-regional activities, you should pay attention to nationwide uniqueness in order to sharpen the brand profile and avoid conflicts. If there are already companies with the same (or very similar) name, a balance must be struck: Is it a different industry or region, or could there be a risk of customer confusion? If in doubt, it is better to choose a distinguishable name.
3. Check domain availability: The name should be available as an Internet domain – especially the .de domain (for the German market) and, if applicable, .com (common internationally) are important. A Whois query or domain search services can be used to determine whether the desired domain is available. Many registrars offer domain checks; alternatively, you can check directly with DENIC (for .de). If the domain is not yet taken, it should be registered as soon as possible (also in relevant other TLDs to be on the safe side). If the domain is already taken, the question arises: Is it being actively used by anyone, and if so, in what context? A brief visit to the website (if available) or a Whois query for the domain owner can provide information. For example, if meinname.de is occupied by an active company in a similar sector, this would be a clear warning sign of a collision. If the domain is occupied, but without content or by someone in a completely different industry/region, you could check whether the name can still be used (possibly with an alternative domain variant). However, it is often problematic from a marketing perspective if the main domain is already taken – this criterion therefore plays a major role in the choice of name.
4. Internet and media research: In addition to the official registers, a general web search (search engines, social media) for the name is worthwhile. It could be that although no trademark is registered and no company is registered, the term is already being used elsewhere – for example as a product name, as an artist’s name or in a blog. Such uses can signal emerging trends or potential conflicts. You should also check whether the name contains terms that are protected or sensitive (e.g. protected geographical indications, official terms such as “police”, or reserved terms in certain sectors such as “pharmacy”). A brief search can reveal such stumbling blocks. Equally helpful: ask friends and acquaintances whether the name sounds familiar – sometimes third parties have associations that you overlook yourself. At the end of this research, it should be clear whether the desired name is unique enough and free of known third-party rights.

By checking all sources in a structured way, you can minimize the risk of surprises. Ideally, you will not find any hits on the name at all – then the chances are good that it really is new and eligible for protection. If several similar names are found, you have to assess on a case-by-case basis whether there is sufficient distinctiveness and distance. If in doubt, it is advisable to consult a specialist lawyer before investing a lot of money in branding. However, if the situation is clear and the name is free, the protective measures can be taken.

Protecting company names in practice

As soon as the decision for an available name has been made, it should be actively protected. The aim is to secure the exclusive rights to use the name for your own company and thus be protected against imitators. In Germany, there are essentially three pillars for this, which should ideally be combined:

• Domain registration: The simplest first step is to register the name as a domain. The most important address is usually meinname.de – for many industries also .com or specific endings. By registering, you acquire technical control over the domain; no one else can then use it. This prevents domain grabbing by third parties. Important: The domain should be secured immediately, if possible in parallel with the founding idea, because the priority principle strictly applies here. Founders often register a few domain names prophylactically during the brainstorming phase. Although the domain alone does not confer any trademark protection, it is the digital figurehead. In addition, a domain can become a business name over time (for example, if an online store is only known by this name). In practice, in addition to the main domain, you should also consider common typos or close spellings in order to prevent subsequent interception domains. Domain registration only costs a small annual fee – a sensible investment to reserve your name on the Internet.
• Register the company name (commercial register): If the legal form of the planned company permits or requires it (e.g. GmbH, AG, OHG, registered merchant), the company name should be registered in the commercial register. The registration of the company name automatically provides name protection in the respective register district: no other company in the same location may use an identical or confusingly similar company name. This protection arises from the German Commercial Code (HGB) and is monitored by the registry courts, which refuse to allow two companies in the same district to have the same name. The entry in the commercial register therefore gives the name local exclusivity. It should be noted that it remains geographically limited – a company in Hamburg could theoretically have the same name as yours in Munich, as long as there is no nationwide confusion. Nevertheless, registration creates publicity and priority. Even for small businesses, which are not obliged to do so, voluntary registration can be useful in order to manifest the name (and incidentally increase respectability). A side effect is that you can only use an imaginary name as your company name once you have been entered in the commercial register; without registration, sole traders would have to use their civil name in their business name. Depending on the legal form, the costs for registration (notary and fees) are usually in the low three-digit euro range – manageable compared to the benefits. Although this step does not cover all eventualities, it officially establishes the name and makes it more difficult for third parties to use it in the region.
• Trademark application: The most comprehensive protection is achieved by registering a trademark. Registering a word mark with the DPMA gives you the exclusive right to the name throughout Germany (for the selected classes of goods/services). This means that in the event of disputes, action can be taken nationwide, regardless of where the opponent is based. This is particularly important for start-ups operating online or supra-regional business models, as you cannot rely on local limitations. The trademark application should be filed promptly, ideally before the public launch of the offer. It requires an indication of the products or services for which the name is to be protected (class selection). The costs are currently around 300 euros official fee (including three classes) for a national trademark – each additional class costs extra. This expense is worthwhile if the name is to be established as a long-term brand identity. After registration, you can use the ® symbol, which has a deterrent effect on potential free riders. Important: As described above, it must be checked that no earlier rights are infringed before the application is filed. Although the DPMA does not actively inform owners of similar trademarks, they could file an opposition or issue warnings afterwards. On the other hand, if the data situation is smooth, the registered trademark provides a legal title with which the name can be aggressively defended. Interesting for some founders: Instead of a national trademark, an EU trademark can also be applied for directly if it is foreseeable that the business area will extend to Europe. This is more expensive, but covers all EU countries. There are also possibilities to extend protection to other countries via an IR trademark. At the beginning of a start-up, however, the German trademark is often sufficient to ensure a secure presence in the domestic market.

These three measures – securing the domain, registering the company and applying for a trademark – give the new company name protection at all levels. Of course, the actual enforceability depends on the fact that no older rights have been overlooked. But if you have done your research properly and chosen the name cleverly, the risk is manageable. The name thus becomes an asset of the company: legally, it belongs to you alone (or your company) and can no longer be used freely by competitors. In addition, a protected name signals professionalism and foresight, which creates trust among customers, partners and investors.

Typical warning traps and how to avoid them

There are a number of pitfalls lurking with names and domains that repeatedly lead to warnings. Young companies sometimes fall into them out of ignorance. Here are the most common warning traps – and tips on how to avoid them:

• Infringement of third-party trademark rights: The most common reason for warning letters is that a chosen name infringes an existing trademark. This can happen if you inadvertently adopt a protected brand name or confusingly resemble it. A warning letter for trademark infringement usually obliges you to change your name immediately and pay the opponent’s legal fees – expensive and damaging to your image. Avoidance: Always carry out thorough trademark research (see checklist) and if there is the slightest doubt about the name, look for an alternative. Also check similar spellings and translations: For example, if “Karacho” exists as a trademark, “Caracho” would be potentially tricky. You should also seek advice before registering if a certain similarity to a well-known trademark seems unavoidable.
• Conflict with company names / naming rights: Not only registered trademarks, but also existing company names and personal names can trigger warning letters. Example: A newly founded company calls itself Müller & Partner, although Müller & Co. GmbH already exists in the city. The older company could demand an injunction under Section 12 BGB or competition law. It is just as problematic to use the name of a well-known personality or institution without any connection to it – this violates the right to a name and possibly the general right of personality. Avoidance: Search the commercial register and online for identical or similar company names at an early stage. Exercise caution when using personal names as company names: If the founders actually have this name, it is legitimate to use it, but in the case of fictitious names, there should be no reference to celebrities. Surnames that occur very frequently can also lead to collisions (e.g. “Schmidt Solutions” – there is a high probability that a Mr. Schmidt is already running something similar). The motto is: strive for uniqueness. If the desired name is already present somewhere, it is better to add a distinctive suffix or choose a completely new name.
• Domain grabbing and typo domains: Anyone who registers domains with other people’s brands or company names in the hope of making a profit does so at their own risk. Classic domain grabbing – e.g. registering the domain of a well-known company in order to sell it on at a high price – is not permitted by law in Germany. Trademark owners can have such domains deleted or demand their return by means of a warning letter. The situation is similar with typo domains (e.g. amazoon.de in the hope of attracting traffic from amazon.de ): This is considered deliberately misleading and can result in warning letters for trademark or competition infringement. Avoidance: Stay away from names to which you have no right of your own. Even if, for example, a large company has failed to occupy all domains, you should not try to capitalize on this – experience has shown that the legal departments of large brands are quick and rigorous. Instead, founders should concentrate on their own brand and at most secure defensively relevant variants of their own domain to protect themselves from domain grabbing.
• Official terms and protected designations: Certain terms are protected by law or by sovereign rights. If you use such words in your company name or as a domain, you may receive mail from authorities or competitors. Examples: Geographical indications of origin such as “Champagne” or “Parmigiano” are reserved for products, Olympia/Olympic is protected by law against unauthorized use, Red Cross, Sparkasse or TÜV are also protected. Even words such as “university” may only be used by recognized institutions. Avoidance: When finding a name, check whether keywords in the name have legal restrictions. If in doubt, do some research or check the law to see whether the term has special protection. For example, a start-up should not be called “Berlin Polizei Security GmbH” to attract attention – both “Polizei” and the implied official reference would be problematic and inadmissible. The same applies to city coats of arms or official seals in the logo. Therefore: Maintain neutrality with official terms if you are not authorized to use them.
• Misleading or purely generic names: A less obvious pitfall is anti-competitiveness by misleading. If a domain or company name gives consumers the wrong impression, a warning can be issued under the Unfair Competition Act (UWG). For example, a domain such as beste-handwerker.de or anwaelte.de could be critical – customers could think they are accessing an overarching business directory or official portal, whereas in reality there is a single company behind it that is trying to attract all customers to itself. In the past, some courts have considered purely generic terms as a domain to be an unfair impediment to competition because competitors are put at a disadvantage. Avoidance: As a company, it is better not to choose purely generic terms that suggest that you represent the entire industry. A descriptive term in the name can hardly be protected under trademark law anyway and is unfortunate from a marketing point of view because it is interchangeable. If you still want to use a generic term, you should include a distinctive addition (e.g. instead of anwälte.de, use Anwalt24 or similar). This minimizes the risk of being warned for misleading or obstructing and at the same time meets the requirements for the protectability of the name.
• Lack of distinctiveness / too general: Although this point does not directly lead to warnings from third parties, it can harm the founder himself or herself. A name that is purely descriptive or very general does not enjoy strong protection – others may use similar terms and the trademark office would refuse registration. The trap here is to choose a name that you cannot effectively monopolize. For example, “Auto-Shop Deutschland” would hardly be enforceable as a trademark and company name: too generic, too many similar terms in use. A competitor could easily open a Autoshop24 without infringing any rights. Avoidance: Focus on uniqueness and creativity right from the start. A slightly more imaginative name that sticks in the mind is usually easier to protect and defend. You also avoid the disappointment if a trademark application fails due to a lack of distinctiveness. Founders should have the confidence to choose brandable names, even if generic terms may seem tempting. In the long term, a distinguishable artificial name pays off, both legally and in terms of branding.

Conclusion

Proper protection of the company and domain name is a must for every start-up in Germany. “Protecting company names” means not only finding a creative name, but above all making it legally sound in the maze of domain law, trademark law and naming law. If you carry out research into existing rights at an early stage and then reserve your name – as a domain, as a company name and ideally as a trademark – you will create clear conditions. This allows the young company to grow undisturbed under its chosen name without having to fear any nasty surprises. The investment in trademark and naming rights as well as a little time spent on checking pays off: It saves costly renaming, legal disputes and loss of image. Founders who go through this process enter the market motivated and legally protected and send a signal of professionalism. In the end, a protected name is not just a legal formality, but also a competitive advantage – it belongs exclusively to the company and can be developed into a valuable brand. In other words: a good name is worth its weight in gold, and a good and protected name even more so. Good luck with your choice of name!

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.