More often than not, business owners do not attend to a trade mark availability search before they register their company name at the Companies and Intellectual Property Commission (CIPC). Section 11 of the Companies Act clearly prohibits the registration of a company with a name which is the same as, or even confusingly similar to:

• another company name; or
• a registered trade mark; or
• a name for which an application for registration as a trade mark has been filed; or
• a defensive company name; or
• a well-known trade mark.

When applying for a company name reservation, the CIPC only considers identical or confusingly similar company names contained on the company names register, and not those contained on the trade marks register, as potential blocks to registration. Therefore, company names that proceed to registration may infringe on trade mark rights as set out in section 11 of the Companies Act. This often leads to company name objections having to be adjudicated by the Companies Tribunal. Conducting a trade mark availability search as part of your due diligence investigation is therefore an important preventive step which can avoid future company name objections and can minimize the possibility of losing the right to your company name in the future.

On the other hand, it is important for a trade mark owner to prevent others from using their trade mark, or a name confusingly similar thereto, as a company name. The Companies Act makes provision for the registration of a defensive company name. Defensive company name registrations are intended to protect trade marks being incorporated into company and close corporation names. This means that you will be able to protect your trade mark on the company names register and prevent others from trading and using your trade mark as a company name.

The applicant for a defensive company name must provide prove to the CIPC that he/she has a direct and material interest in the protection of the name i.e. a trade mark registration or even an application for a trade mark registration. A defensive company name may be registered with CIPC for a period of two years and may be renewed for every two years thereafter. The advantage of registering a defensive company name is that it avoids the cost of a formal company name objection every time a company is registered with an identical or confusingly similar name.