A business name is found quickly and shed expensively. Anyone who prints signs, letters vehicles and builds a website before somebody has looked at the register risks exactly the invoice that an hour of research would have avoided. In 2025 the German Patent and Trade Mark Office received 96,328 trade mark applications (DPMA Annual Report 2025), 19.8 percent more than the year before; national applications alone rose from 77,224 to 93,291 (DPMA Annual Report 2025). The field is getting denser, not emptier. This article shows which rights reach for the same name at the same time, what a register search can and cannot deliver, and how to record the result so that it is still worth something in two years.
Four rights reach for the same name
The error of reasoning is usually already in the question. “Is the name free?” sounds like a single piece of information available somewhere. In fact at least four bodies of law reach for the same wording.
Each arises differently, extends differently far and is kept in a different place. Anyone who queries only one source therefore gets an answer that feels right and is nevertheless incomplete.
Trade mark, section 4 Trade Mark Act
As a rule it arises through registration with the German Patent and Trade Mark Office (Trade Mark Act). Protection applies only to the goods and services applied for, not to the name as such.
Trade name, section 5 Trade Mark Act
It arises without any register, purely through use in the course of trade (Trade Mark Act). There is no database in which such rights would be recorded completely.
Company name, section 30 Commercial Code
A new company name must be clearly distinguishable from company names already registered, but only from those in the same place or municipality (Commercial Code).
Name, section 12 Civil Code
Civil name law protects the names of individuals, associations and businesses and applies even where no commercial dealings are involved (Civil Code).
These four rights are not ranked one after another, they take effect side by side. A name can be entirely free in the trade mark register and still have been used for eight years by a business two districts away that relies on its trade name. Conversely, an entry in the commercial register offers no protection against an older trade mark: distinguishability under section 30 of the Commercial Code is expressly required only in relation to company names “in the same place or municipality” (Commercial Code), whereas trade mark protection applies nationwide. Which details belong on every website regardless of this is covered in our article on the imprint and the privacy policy.
Whoever was there first decides
What the office examines and what it does not
The most widespread misconception is this: once the office registers the trade mark, it must be clean. The opposite is stated on the office's own page.
What is examined are absolute grounds for refusal, that is whether the sign is distinctive at all, whether it is purely descriptive, whether it needs to be kept free. Conflicting earlier rights of third parties are expressly not part of that examination.
The DPMA examines the trade mark application for absolute grounds for refusal during the application procedure (not for possibly conflicting earlier rights of third parties, applicants should check that themselves beforehand). Translated from the German original.
This division of labour has consequences in practice. A registered trade mark is not a free pass but a right that an older right can take back. In 2025 the office received 155 invalidity applications (DPMA Annual Report 2025) based on the existence of earlier rights, after 102 the year before. Measured against the total portfolio the figure is small, but each time it hits somebody who had considered the matter settled.
- Registration confirms that the sign is distinctive enough to serve as an indication of origin.
- It confirms that the sign is not purely descriptive for the goods and services claimed.
- It confirms that no absolute ground for refusal such as a state emblem stands in the way.
- It says nothing about whether somebody else had the same or a similar name earlier.
- And it says nothing about whether an unregistered trade name is older than your application.
Figures help with the classification. In 2025 55,863 trade marks were registered (DPMA Annual Report 2025), set against 18,982 withdrawals and 7,503 refusals. The office puts the result like this: “Fewer than 10 % of trade marks are refused on substantive or formal grounds.” The hurdle at the office is therefore low. The hurdle created by other people's earlier rights is examined by nobody at this stage. How much a cleanly maintained name contributes to the trust visitors bring to a website is described in the article on seals, master craftsman certificates and guarantee claims.
The register keeps growing
The research that comes before the application
A robust name search does not consist of one query in a search engine but of several passes using different sources.
What matters is less completeness, which is unattainable anyway for unregistered rights, than traceability: who searched when, where and with which search term, and what did they find?
- The trade mark register of the German Patent and Trade Mark Office: identical and similar signs, and not only in the class you have in mind.
- EU trade marks and internationally registered marks extended to Germany, because they take effect here in the same way.
- Commercial, cooperative and association registers, checking the wording and phonetic variants.
- An open search for actual use: websites, trade directories, shop signs, vehicle lettering.
- The domain landscape: the preferred domain and the closest variants including umlaut spellings.
- Accounts on map, review and network services, because a name taken there permanently dilutes later findability.
Searching the register is freely accessible and costs nothing but time. What it cannot do is find rights that are not registered anywhere. That is precisely the gap opened by section 5 of the Trade Mark Act, because a trade name arises through use and appears in no directory. This is why the unstructured search for actual use as a rule belongs to the exercise, and why a research result is a statement of probability rather than a clearance. How such preparatory work fits into a website project is shown in the overview of our approach.
Document the research, do not just carry it out
Likelihood of confusion: similarity times sector proximity
Section 14 of the Trade Mark Act prohibits third parties from using a sign where it is identical or similar to the trade mark, is used for identical or similar goods and services and therefore creates “a likelihood of confusion on the part of the public” (Trade Mark Act). Three conditions that work together: the more similar the signs, the greater the distance between the sectors has to be, and the other way round.
The office explains the mechanism with an example of its own: a trade mark “Hansmayer” protected for “sandwiches; catering for guests” could not successfully act against the trade mark “Hansmayer” for “sportswear” (DPMA Annual Report 2025). Identical wording, no conflict, because the goods have nothing to do with each other. For your naming decision that means a hit in the register only becomes a problem once it moves close to you.
Scroll table sideways
| Constellation | Proximity of signs | Proximity of sector | Typical assessment |
|---|---|---|---|
| Same wording, same service | identical | identical | conflict, the name is as a rule not tenable |
| Same wording, far removed sector | identical | low | usually uncritical, an individual assessment remains necessary |
| Similar sound, same sector | high | identical | critical, a likelihood of confusion is often close |
| Additional word in front of a well-known sign | high | any | critical, well-known marks act even without sector proximity |
| Descriptive term in both names | low | identical | frequently unproblematic, no protection attaches to the descriptive term |
The table does not replace an assessment of the individual case, it merely sorts the cases in advance. In our experience the decision is already taken here on whether a naming idea is pursued: a hit from the top row costs considerably more later than a new naming proposal today. The same caution applies to everything that later appears next to the name on the page, and that includes price statements and advertising claims.
Classes: what the protection actually covers
Trade mark protection is not protection of a word but protection for particular goods and services.
Internationally these are sorted uniformly into 45 classes (DPMA), 34 of which concern goods and the remaining eleven services (DPMA Annual Report 2025). The 13th edition of the Nice Classification entered into force on 1 January 2026; it is applied in more than 140 countries (DPMA Annual Report 2025). Anyone who separates their services cleanly anyway finds the choice of classes easier, and the same separation helps the website: see the article on one page per service.
The choice of classes is therefore both a protection decision and a cost decision. The basic application fee is 290 euros for an electronic filing and 300 euros on paper, in each case for up to three classes; every further class costs 100 euros (DPMA Annual Report 2025). The term of protection is ten years (Trade Mark Act), after which a fee falls due again on renewal, at a separate rate (schedule of fees to the Patent Costs Act). Anyone filing broadly as a precaution pays for that stock a second time.
Filing broadly has a catch
The domain belongs in the same decision
Running the name check and the domain check separately produces the second most expensive version of the problem: the name is legally sound, but the matching address is gone.
As at 31 August 2026 there were 18,150,432 .de domains (DENIC) registered, compared with 17,663,886 at the end of 2025. The stock grows slowly, yet the short and descriptive combinations have long been taken. Which address and which mailbox belong together is covered in the article on the domain and a business email address.
The legal classification matters: registering a domain is a contract about a technical allocation, not a right in a sign. In itself it establishes no protection of a name, but it can infringe other people's rights. Conversely, the holder of a sign can act against a domain without ever having registered one. The office advises thinking about both together: “Registering relevant domains that contain your trade marks early on (roughly at the same time as the trade mark application) helps to prevent cybersquatting.” (DPMA Annual Report 2025) How an address then takes effect regionally is shown in the article on local visibility.
- Register the preferred domain plus the two or three closest variants in one go
- Compare the umlaut spelling with the written-out variant and redirect the second permanently to the first
- Set up the matching mailbox on the same day so that the imprint and quotations are correct from the start
- Create profiles on map and review services under the same spelling
- File the registration date, the invoice and the holder details, because that is your evidence of seniority
If the domain is already taken
When the letter arrives
A trade mark warning letter is unpleasant, but at first it is only an assertion with a deadline. Two mistakes cost the most in our experience: letting the deadline pass and signing the enclosed cease-and-desist declaration unchecked.
The pre-formulated declaration is regularly drafted more widely than the asserted claim and carries a contractual penalty for years. Conversely, anyone wishing to act against a younger registration has three months after publication to do so, and the opposition fee is 250 euros (DPMA).
- Note the date of receipt and the deadline before anything else happens.
- Check whether the asserted earlier right exists at all and for which classes it is registered.
- Check whether the trade mark is being used, because after five years without genuine use the defence under section 26 of the Trade Mark Act applies.
- Assemble your own seniority: first invoice, first archived state of the website, first advertisement, register extracts.
- Obtain legal advice and only then decide whether and in what form to respond.
- In parallel, calculate what a change of name would cost, because that is the benchmark for every negotiation.
Keep the deadline, check the substance
Changing the name without losing visibility
Sometimes the change is the cheaper decision.
It becomes expensive not because of the new signs but because of what hangs off the old address: links from directories, printed flyers, saved bookmarks and the position built up in search over years. Anyone who simply switches off the old domain throws that position away. Anyone running several locations moves them all at the same time, otherwise contradictory details arise: see the article on several locations on one website.
Technically the move is a chain of permanent redirects. Every old address points with status 301 to its matching new counterpart, not collectively to the home page. A blanket redirect to the home page is treated in our experience like an error page and does not pass on the position that was built up.
# Move the old domain completely to the new domain
server {
server_name old-example.invalid www.old-example.invalid;
# Page by page, not collectively to the home page
location = /services/ { return 301 https://www.new-example.invalid/services/; }
location = /about-us/ { return 301 https://www.new-example.invalid/team/; }
location = /contact/ { return 301 https://www.new-example.invalid/contact/; }
# Only then the catch-all
location / { return 301 https://www.new-example.invalid$request_uri; }
}The old domain stays registered at least as long as links still point to it; one year is the lower limit, two are safer. In parallel, entries on map and directory services, signatures, invoice templates and profiles are brought up to date. How the change shows up in the search result is covered in the article on page titles and descriptions in the search result; what to watch for in the weeks afterwards is in the article on the first weeks after launch.
- Imprint, privacy policy and terms updated to the new company wording
- Mailboxes, forwarding rules and signatures across the whole team
- Entries on map, review and trade directory services
- Invoice and quotation templates including register and tax details
- Vehicle and shop lettering, workwear, printed material
- Links from partner sites, associations and trade guilds
How it works in practice
The saving lies in the order. Anyone putting the check at the beginning loses a naming idea in the worst case. Anyone putting it at the end loses printed material, domain, lettering and visibility in the worst case, and builds the website a second time.
Week 1: research
Trade mark register, commercial register, open search, availability of domains and profiles. The result is a dated record, not a gut feeling.
Week 2: decision
Sort the hits by proximity of signs and sectors, settle the classes, name the residual risk and determine a name variant as a fallback.
Week 3: securing
Register the domain and the mailbox, create the profiles, prepare the trade mark application and file the evidence for your own seniority.
Only then does building the website begin, not before. Anyone appearing in public under the new name for the first time will find the matching sign-up route in the article on announcing events on the website; what a course booking looks like in daily practice is shown in the article on a driving school website with course sign-ups. And because a checked name is part of what a business can later hand over, the article on business succession and handover value is worth a look. What the result looks like is shown by our example pages.
Sources and studies