Auxiliary company name
According to the Finnish Company Name Act (128/1979) section 19 subsection 2(2), the company name or the auxiliary company name must be used in the course of business, or otherwise the registration of the name may be cancelled if it has not been used within the past five years. The Finnish Supreme Court has not issued any case law regarding the use of the company name or the auxiliary company name or the evaluation of the proof of use until now. Namely on 22 June 2022, the Finnish Supreme Court rendered a preliminary ruling regarding the sufficient use of the auxiliary name “Wikeström & Krogius” of Blue Water Shipping Oy (BWS).
According to the Finnish Supreme Court, a basic requirement for the actual use of the auxiliary company name is that the entrepreneur carries on business within the branch of the auxiliary company name and that the auxiliary company name is utilized for the development or maintenance of that business. According to the Finnish Supreme Court, even a minor use of the auxiliary company name, as in the case of trademarks, may be sufficient to maintain registration.
The European Union has not harmonized the legislation on company names but the case law regarding trademarks can be interpreted by analogy. However, it should be remembered that the primary function of company names is to individualize the entrepreneur whereas the primary function of trademarks is to indicate the origin of goods and services.
BWS, an international forwarding and logistics company, bought the business activity of a Finnish company named Wikeström & Krogius in 2013. After the transaction, the name “Wikeström & Krogius” was registered as an auxiliary company name of BWS and it was used for several years, in particular for business activity related to the acquired business and its customer contacts. However, the use of the auxiliary company name was slowly decreasing after the transaction in 2013 and the auxiliary name was no longer much used already before the start of the five-year period and the relevant period in the summons (Finnish Company Name Act section 19 subsection 2(2)), it was still used in certain contexts.
BWS proved, based on written evidence and supporting oral evidence, that the company had used the auxiliary company name during the five-year period in transport, forwarding and logistics services, in the emails of the company’s employees, on the website of the company and in advertisements of the company’s trailers. According to the Finnish Supreme Court, each of the above-mentioned uses was specifically related to the company’s business and individualized the entrepreneur. The Finnish Supreme Court stated that the use of the auxiliary company name and the extent of the use could be considered to be common in the branch of forwarding and logistics business and in the context of acquiring a business.
The fact that the auxiliary company name of the Finnish limited company was partly used in connection with the Danish group company (A/S) was relevant for the purpose of evaluating the proof of use, since the auxiliary company name was used in connection with the business activity of BWS. In the commercial communication of the companies belonging to the same group company and doing business in proximity, it may be considered to be common to refer to the parent company or to the group company as a whole. The use of the auxiliary company name together with the signs of the parent company or the group company is one way to utilize the auxiliary company name in business activity and refer to a specific part of the business activity.
Using the auxiliary company name only for the purpose to maintain the registration is not accepted as a proof of use. Such claims were not done in this case. Evaluating the evidence as a whole, BWS used the auxiliary company name in a manner which referred to and benefited the part of its business protected by the auxiliary company name during the last five years before commencement of action. So, the company used the auxiliary company name de facto.
According to the Finnish Supreme Court, the use of the auxiliary company name of BWS could not be considered to be so limited that it would not be sufficient to maintain the registration. The Finnish Supreme Court reversed the judgement of the Finnish Market Court and ordered the counterparty to reimburse the legal costs of BWS.
The writer assisted BWS with the dispute.