The name is usually settled long before anyone thinks about law. It is on the van, on the invoice, on the sign at the building, and since the relaunch it is also in large letters on the home page. Then a letter arrives from a law firm, and suddenly half the external presence hangs on a single word: vehicle lettering, printed material, the domain, every email address, the directory entries and the rankings built up over years. Check the name before you launch and you are dealing with a search. Check it afterwards and you are dealing with a deadline. This article describes which rights can attach to a name, what the German Patent and Trade Mark Office examines when an application is filed and what it expressly does not, why a free domain says nothing about the legal position, and in which order to proceed before you start. It describes the legal position in general terms and does not replace legal advice on the individual case - it is meant to sort the questions you take into that conversation.
Key takeaways
- A name can be covered by several rights at once: by a registered trade mark, by a company sign that arises through use alone (MarkenG § 5), by a person’s name right (BGB § 12) and by a firm entered in the commercial register (HGB § 30). Three of those four appear in no trade mark register at all.
- The German Patent and Trade Mark Office examines an application for absolute grounds for refusal, expressly not for earlier rights of third parties that might conflict with it (DPMA). A registration is therefore not a clearance certificate.
- The office counted 93,291 national trade mark applications in 2025, and 909,659 registered marks were on the register at year end (DPMA). The room for unclaimed names is getting tighter, not wider.
- A free domain is not a permission. The registry is at no point obliged to check whether a registration infringes the rights of third parties (DENIC-Domainbedingungen) - you give that assurance yourself when you place the domain order.
- Filing a German trade mark electronically costs 290 euros for up to three classes and protects the mark for ten years (DPMA, MarkenG § 47). Fail to put the mark to genuine use for five years and it becomes vulnerable (MarkenG § 26).
- Checking costs hours. Renaming hits signage, printed material, the domain, email addresses and rankings at the same time - on a date somebody else sets.
Why the name only becomes an issue after the printing
In the order that everyday practice produces, the name comes first and the law comes last. First there is an idea, then a domain, then business cards, then a website. The only check, if there is one at all, is whether the domain is still free - and because it was free, the matter counts as settled. That ownership and sign rights are two separate topics often only becomes clear when a third party objects. If you have already established who actually owns the domain, the hosting and the access, you have answered the ownership question - the name question sits next to it and is still open.
The difference between the two moments is less a legal one than a commercial one. Before launch, a text file hangs on the name. After two years, what hangs on it is the lettering on three vehicles, a sign on the workshop, workwear, invoice and letterhead templates, the domain, every email address, dozens of directory entries and the rankings the website has reached in local search. A forced change of name is therefore more expensive than any planned relaunch: it hits all of those at once, and the date is set from outside.
Volume adds to the pressure. The German Patent and Trade Mark Office received 93,291 national trade mark applications in 2025, up 20.8 percent on the previous year (DPMA). 82,542 registration procedures were completed, of which 55,863 ended in a registration (DPMA). At year end, 909,659 marks stood on the register (DPMA). 5,391 applications came from Lower Saxony, which is 67 per 100,000 inhabitants against 94 across Germany (DPMA). The region files less often - it still runs into the same earlier rights as everyone else.
What physically hangs on the name
Vehicle lettering, the sign on the building, workwear, stamps, invoice and quotation templates, letterheads, business cards, stickers on tools and materials. These items are bought together and can only be replaced together.
What hangs on it digitally
The domain in every spelling in use, all email addresses, sender identities, accounts with map services and directories, signatures, quotation templates in the document system and every inbound link pointing at the old address.
What visibility is lost
Rankings build up over months out of content, links and entries under one name. A change of name resets addresses, directory entries and links at the same time; a redirect preserves the address, but not the recognition.
What hangs on the timing
A letter with a deadline rarely arrives at a convenient moment. It lands in the busy season, on the trade fair date, or the day before the new printed material is delivered. Your own calendar plays no part in it - the deadline runs.
Four rights pointing at the same name
A name is not a single right but a bundle of possible rights that exist side by side and do not exclude one another. Four of them regularly affect small and medium-sized businesses. Only one can be surveyed in full with a single register search - the other three have to be hunted down.
The registered trade mark
Trade mark protection arises through the entry of a sign in the register kept by the German Patent and Trade Mark Office (MarkenG § 4). The proprietor holds an exclusive right; third parties may not use an identical or similar sign for identical or similar goods where there is a likelihood of confusion on the part of the public (MarkenG § 14).
The company sign
Company signs are signs used in the course of trade as the name, the firm or the special designation of a business establishment (MarkenG § 5). Protection arises through use, without any filing and without a fee; third parties may not use it in a way liable to cause confusion (MarkenG § 15).
The mark acquired through use
Protection also arises through the use of a sign in the course of trade, provided the sign has acquired public recognition as a mark within the relevant trade circles (MarkenG § 4). Such rights appear in no register and only show up on the market - through advertising, press coverage and local reputation.
Name and firm
The name right protects the entitled party against the unauthorised use of the same name by others (BGB § 12). On top of that, every new firm has to be clearly distinguishable from all firms already entered in the register at the same location (HGB § 30), and it has to be suitable to identify the merchant and possess distinctive character (HGB § 18).
The awkward part sits in the second point. A company sign arises through use in the course of trade - without a filing, without a fee, without an entry at any central place (MarkenG § 5). The business two districts away that has traded under a similar name since 1998 appears in no trade mark register and still holds a right older than yours. You will find it through the commercial register, through trade directories, through search engines and through the details in the legal notice every commercial website has to carry anyway - not through a register query.
That search is more tedious than a register query, but it follows the same routes you will take later anyway: anyone who keeps their business listings in directories consistent already knows the directories where similarly named businesses appear. Search for the name without the legal-form suffix, for obvious spellings, for how the name sounds and for combinations of place name and trade. Unfair competition law comes on top: a commercial practice is also misleading if it creates a likelihood of confusion with the mark or another sign of a competitor (UWG § 5). A name that echoes a better-known business can therefore be open to attack even where trade mark law raises no objection.
| Right | Arises through | Reach | Findable via |
|---|---|---|---|
| Registered trade mark (MarkenG § 4) | Entry in the register of the DPMA | Nationwide for the registered goods and services | Register search at the DPMA |
| Mark acquired through use (MarkenG § 4) | Public recognition in the relevant trade circles | As far as that recognition extends | Market knowledge, advertising, press |
| Company sign (MarkenG § 5) | Use in the course of trade | Mostly regional, depending on the field of activity | Commercial register, directories, open search |
| Name and firm (BGB § 12, HGB § 30) | Bearing the name, entry in the commercial register | Name right nationwide, firm protection at the registered location | Commercial register, public sources |
| Unfair competition law (UWG § 5) | Market conduct towards competitors | Wherever a likelihood of confusion arises | The competitive field on your own market |
Put the search down in writing
What the office examines and what stays your job
The most common misconception in trade mark law runs: if the office registers the mark, the name has been checked. The opposite is stated on the office’s own pages. The DPMA examines a trade mark application during the registration procedure for absolute grounds for refusal, expressly not for earlier rights of third parties that might conflict with it - that search is one the applicant should carry out beforehand (DPMA). A registration is therefore not a clearance certificate but a finding that nothing inherent in the sign stands in its way.
What the office does not examine, others do. Once a mark is registered an opposition period runs; anyone holding an earlier right can act against the registration during that time, and the basic fee per opposing sign is 250 euros (DPMA). If the other side raises the plea of non-use, the opponent has to prove genuine use of the mark within the last five years (MarkenG § 43). Independently of the office procedure, a holder of an earlier right can act directly at any time: a claim for injunctive relief under MarkenG § 14 or MarkenG § 15 does not require the claimant to hold a registration of their own. Your own mark therefore does not protect you from being attacked yourself.
- The trade mark register of the DPMA for identical and similar signs in the classes covering your goods and services - what counts is the likelihood of confusion, not identical spelling (MarkenG § 14).
- The commercial register for identical and similar firms at the same location, because every new firm has to be clearly distinguishable from those already entered there (HGB § 30).
- Trade directories, map services and search engines for businesses using the name without having registered it - those rights arise through use (MarkenG § 5).
- Obvious spelling variants: one word or two, hyphenated forms, singular and plural, umlaut substitutions, identical sound with a different spelling.
- Descriptive elements: a name that merely names the goods or service is hard to register as a mark and separates you from nobody in the market. A firm has to be suitable to identify the merchant and possess distinctive character (HGB § 18).
- The domain pool in exactly the spellings you intend to use, together with the question of who holds the obvious variants and what they use them for.
The effort stays manageable as long as it comes before the launch: a few hours for the register queries and the open search. If you are working on local visibility in Hildesheim and the surrounding area anyway, the search terms and directories are already in front of you. The same combinations of place, trade and service that you want to be found for also reveal the businesses you could be confused with - the search is therefore not a separate project but a second look at material you are collecting in any case.
The name on the van counts as use
A domain is not a property right
A free domain feels like a clearance but is only a statement about a database entry. The registry for .de domains is at no point obliged to check whether the registration of a domain or its use infringes the rights of third parties (DENIC-Domainbedingungen). Conversely, when you place the domain order you yourself give the assurance that registration and intended use neither infringe the rights of third parties nor breach general law (DENIC-Domainbedingungen). If you also use the domain as the basis for email addresses under your own name, your daily correspondence hangs on that same assurance.
What the registry does check
Whether the requested string is technically admissible and still free, and whether the order is formally complete. That is a check of availability, not a check of the name.
What it expressly does not check
Whether the holder’s data are correct or complete, and whether registration or use infringes the rights of third parties - there is at no point any obligation to do so (DENIC-Domainbedingungen).
What you stand for
With the domain order you give the assurance that registration and intended use infringe no third-party rights; on top of that comes the contractual indemnity should a third party bring claims (DENIC-Domainbedingungen).
The dispute entry
Anyone asserting their own rights in a domain that is already taken can have a dispute entry set. It has effect for one year and prevents the domain being transferred to a third party during that time (DENIC-Domainbedingungen).
In practice that means the domain pool belongs inside the search, not at the end of it. Look at who holds the obvious variants and what they are used for. A taken variant with an active website in the same trade is a warning sign; a parked address with no content says little on its own. And because the domain ultimately sits on a server, choosing the hosting belongs in the same preparation - though it does not answer the name question.
Free means available, not permitted
For the reverse case - somebody registers a domain carrying your name - two routes run side by side. Under name law the entitled party can demand that the interference be removed where another party uses the same name without authorisation (BGB § 12). For .de domains the dispute entry comes on top and has effect for one year (DENIC-Domainbedingungen). Both presuppose that contracts and access are in order: anyone who has registered domain, hosting and accounts properly in the name of the business can act in such a case instead of hunting for passwords first.
Classes, fees and deadlines
A mark does not apply to everything, only to the goods and services it is registered for. These are divided into 45 classes under an internationally uniform system, the Nice Classification (DPMA). For a trade business that usually means one to three classes; for a retailer with an own product line it quickly means more. The class claimed most often in 2025 was class 35 with 30,757 entries - advertising, business management, business administration and office functions (DPMA). One point matters here: goods and services are not regarded as similar merely because they appear in the same class (MarkenG § 14).
Filing a German trade mark electronically costs 290 euros including the class fee for up to three classes, or 300 euros on paper; each further class from the fourth onwards costs 100 euros (DPMA). After ten years a renewal fee of 750 euros falls due, again including the class fee for up to three classes (DPMA). Measured against what a website costs in total, that is a small item - and a far smaller one than new signage plus a change of domain.
The term of protection of a registered mark is ten years counted from the date of filing, and it is renewed for a further ten years each time the renewal fee is paid (MarkenG § 47). Set against that is an obligation: a proprietor who does not put the mark to genuine use in Germany for the registered goods and services cannot enforce claims from it or maintain the registration (MarkenG § 26); in opposition proceedings use over the last five years has to be proved (MarkenG § 43). A mark held in reserve that only sits on the register therefore loses its value. Protection follows use, not intention.
| Question | Without registration | With a registered mark |
|---|---|---|
| How protection arises | Through use in the course of trade (MarkenG § 5) | Through entry in the register (MarkenG § 4) |
| Reach | As far as the activity extends, mostly regional | Nationwide for the registered goods and services |
| Evidence in a dispute | Use, extent and period have to be documented | Register extract, plus proof of use after five years |
| Official fee | None | 290 euros electronically for up to three classes (DPMA) |
| Ongoing obligation | Continued use in trade | Renewal every ten years, genuine use (MarkenG § 26) |
| Visibility to third parties | Findable only through an open search | Searchable in the register, by your competitors too |
When registration is worth it
The order to work in before the launch
The whole difference lies in the order. Search, then decision, then domain, then filing where needed, then printing - done that way, the name costs hours. The other way round it costs months. If your launch is tied to a season, work backwards: much as with the question of when the website has to be ready for the Christmas trade, the latest possible date determines when the first check has to begin. For a trade mark filing, allow additionally for the time between filing and registration, with the opposition period only running after that.
The second point concerns everything that makes the name visible. Lettering, signs, workwear and printed material are produced together with the name, and the same motifs end up on the website later. Anyone using real photos of their own business instead of stock images has the name on vehicles, facades and clothing in the picture - a change of name therefore devalues the image library in one go as well. Which is why the name check belongs before the photo shoot, not after it.
- Collect candidates: write down three to five serious names rather than one favourite. Anyone checking a single name unconsciously looks for reasons to keep it.
- Query the registers: the trade mark register of the DPMA and the commercial register for identical and similar signs in the relevant classes and at your own location (MarkenG § 14, HGB § 30).
- Run the open search: search engines, trade directories and map services for businesses using the name without a registration (MarkenG § 5). Record every hit with date and source.
- Have it assessed: similar hits belong in front of a lawyer before money is spent. Whether a likelihood of confusion exists cannot be settled by glancing at two spellings.
- Decide and secure: fix the name, register the domain in the spellings you need, file the mark where appropriate - in that order, not another.
- Only then make it visible: signage, printed material, directory entries and the website come last. If it is unclear which services belong together for that step, settle it in the same round.
A name that has not been checked is not an asset but an open invoice with an unknown due date.
What else belongs in place before the name goes live
Sources and Studies