Why is a Google search not enough before founding a company?
A Google search is a good starting point, but it is not a legal check. It shows you whether a name is already visibly in use, but it replaces neither the commercial register check nor the trademark search nor the domain check.
The reason is simple: different rights arise in different ways. The company name is the legal name of your business in the commercial register. The trademark protects a sign for particular goods or services. The domain is the internet address at which your business is to be reachable. Although these three levels overlap in practice, they are treated differently in law.
Particularly dangerous is the assumption that an available domain name automatically means that the company name or trademark is free as well. That is not the case. A domain can be technically available and still infringe third-party rights. The Federal Supreme Court has held that although domain names are technically internet addresses, from the perspective of users they can also serve an identifying function. If a domain name conflicts with a protected name, a company name or a trademark, its use may therefore be unlawful (BGer 4C.9/2002 E. 4).
What is the difference between company name, trademark and domain?
The company name is the official name under which your business is entered in the commercial register. It must be truthful, must not be deceptive and must not conflict with any public interest (Art. 944 Abs. 1 OR). In the case of commercial companies and cooperatives, the legal form must also be stated, for example GmbH or AG (Art. 950 Abs. 1 OR).
The trademark, by contrast, is a sign that distinguishes the goods or services of one business from those of other businesses (Art. 1 Abs. 1 MSchG). This can be a word, a logo, a number, a shape or a combination of these (Art. 1 Abs. 2 MSchG). Trademark rights generally arise only upon entry in the trademark register (Art. 5 MSchG).
The domain is your address on the internet, for example a .ch name. It does not automatically give you trademark rights or rights in a company name. It can, however, conflict with such rights. That is precisely why the domain check is an essential part of company name, trademark and domain research before founding a business.
How do you check a company name properly?
Company name research is first about whether your desired business name can be entered in the commercial register and whether it comes too close to existing company names.
An important rule applies to commercial companies and cooperatives: the company name must be clearly distinguishable from all company names of commercial companies and cooperatives already registered in Switzerland (Art. 951 OR). For sole proprietorships, protection is narrower. A registered sole proprietorship name may not be used by another business owner in the same place, and in the case of conflicts in other places, claims under unfair competition law in particular remain reserved (Art. 46 OR).
In practice you start with a search in the central business name index, Zefix. There you will find businesses registered in Switzerland. It is important, however, not to search only for the exact name. Also check variants without the legal form suffix, with different spellings, with spaces, hyphens, singular and plural, as well as similar-sounding names. If you want to found «AlpinaTech GmbH», for example, you should not search only for exactly «AlpinaTech GmbH», but also for «Alpina Tech», «Alpinatec», «Alpina Technologies» or «Alpina».
Another point is often underestimated: a company name that is free, or not yet identical to another, is not automatically permissible. The name must not be deceptive. Anyone trading as «Swiss Medical Research AG» without any genuine connection to Switzerland or any corresponding medical research activity risks problems with the principle of truthfulness and the prohibition of deception (Art. 944 Abs. 1 OR). In addition, registering a company name does not release you from complying with other provisions of federal law, in particular provisions on protection against deception in commercial dealings (Art. 955a OR).
Why is trademark research so important before founding a company?
Trademark research matters because your company name is often also used in the market as a sign for your products or services. That is exactly where trademark law begins.
A trademark can be excluded if it is identical or similar to an earlier trademark and is to be used for identical or similar goods or services. The decisive question is whether this gives rise to a likelihood of confusion (Art. 3 Abs. 1 MSchG). The proprietor of the earlier trademark can invoke these relative grounds for exclusion (Art. 3 Abs. 3 MSchG).
This means that even if the commercial register accepts your company name, the proprietor of an earlier trademark can later take action against its use in the market. Conversely, registration in the commercial register does not automatically protect you as a trademark. Trademark protection arises only upon entry in the trademark register (Art. 5 MSchG).
Swissreg, the trademark database of the Swiss Federal Institute of Intellectual Property, is suitable for an initial search. There you can search for Swiss trademarks, pending applications and international trademarks with effect in Switzerland. The IPI itself points out, however, that a search in the trademark database is not sufficient to resolve potential conflicts conclusively. The reason lies above all in similar signs, figurative elements and the classification of goods and services.
For founders, this means that a simple word search is better than nothing, but for an important name you should also check similar spellings, phonetic variants, translations and abbreviations. Particular care is needed with logos or figurative signs, because figurative elements are more difficult to research.
What do you need to consider when researching a domain?
When researching a domain, you first check whether the desired internet address is available. For .ch and .li domains, this can be done via the official lookup provided by SWITCH or nic.ch. However, this check only tells you whether the domain name is registered and, for existing domains, shows certain technical information or the registrar.
Legally, little has been settled by that. A domain name can be available and still infringe the rights of others. Conversely, a domain name can be taken even though you may hold a stronger right in the sign. A claim to a particular domain does not arise simply because you own a company name or a trademark. What matters are the specific rights in the sign and the balance of interests.
The Federal Supreme Court states the principle clearly: if the sign used as a domain name is protected under the law of names, company names or trademarks, the person entitled can in principle prohibit an unauthorised party from using the sign as a domain name. Where different rights collide, a weighing of interests is required (BGer 4C.9/2002 E. 4).
Especially before founding a business, you should therefore not check only your preferred domain. It also makes sense to look at close variants, typical typing errors, hyphenated versions and important extensions such as .ch, .com or .swiss. Additional requirements apply to .swiss. Among other things, a sufficient connection to Switzerland is required, and the requested designation must legitimately permit an objective connection to the applicant or to the intended use (Art. 53 Abs. 1 VID).
What order does it make sense to research in?
Good company name, trademark and domain research follows a clear order. First you should develop several name variants. A single favourite name is risky, because it can fail at any one of the three levels.
Then you check the company name in the commercial register context. This concerns identical and similar company names, the legal form suffix, the prohibition of deception and clear distinguishability. Trademark research follows. Here you check not only identical hits, but also earlier similar signs for identical or similar goods and services. Only then should you firmly reserve the domain, so that your online presence, company name and trademark fit together.
In practice, these steps often run in parallel. That makes sense, as long as you do not mix up the results. A «free» result for the domain does not mean «free» in the trademark register. The absence of a Zefix hit does not automatically mean «unproblematic under trademark law». And a possible trademark does not automatically mean that the desired domain is obtainable.
If you need support with your research, Jurata is always happy to help.
When is professional research worthwhile?
Professional research is worthwhile above all when the name matters in the long term. That is almost always the case if you are investing in branding, a website, packaging, advertising or software.
The higher the planned investment, the more expensive a later change of name becomes. A conflict can mean having to adapt your website, logo, email addresses, social media profiles, contracts, invoices and marketing material. In the worst case, claims for injunctive relief or damages are added. Under company name law, unauthorised use of a company name can give rise to claims for injunctive relief and, where there is fault, for damages (Art. 956 Abs. 2 OR).
Professional research is particularly advisable if your name appears invented, is to be used internationally, involves several languages, resembles an existing term or is to be used in a strongly brand-driven market. These include software, cosmetics, food, fashion, consulting, financial services, health and e-commerce.
Frequently asked questions about research before founding a company
Do the company name and the trademark have to be identical?
No. The company name and the trademark can be identical, but they do not have to be. Many businesses operate under a trademark that differs from their registered company name. What matters is that both levels are checked legally.
Does registration in the commercial register automatically protect me as a trademark?
No. Registration in the commercial register protects the company name, but it does not create automatic trademark protection. Trademark rights arise upon entry in the trademark register (Art. 5 MSchG).
Can I simply register an available domain?
Technically yes, legally not always. An available domain can infringe the names, company names or trademarks of others. Domain names must therefore keep a sufficient distance from protected signs of third parties (BGer 4C.9/2002 E. 4).
What is the most common mistake when choosing a name?
The most common mistake is checking only one level. Anyone who only checks the domain overlooks possible rights in company names or trademarks. Anyone who only checks Zefix overlooks earlier trademarks. A combined company name, trademark and domain search is safer, before you found your business and invest in your brand presence.
