Two legal entities with the same name. Is it possible to register a company with the same name as another existing organization? Is it possible to register an LLC with the same name?
In accordance with paragraph 4 of Art. 54 of the Civil Code of the Russian Federation, a legal entity that is commercial organization, must have a company name.
Based on paragraph 1 of Art. 1473 of the Civil Code of the Russian Federation, a legal entity that is a commercial organization acts in civil circulation under its corporate name, which is determined in its constituent documents and is included in a single State Register legal entities at state registration legal entity.
According to paragraph 1 of Art. 1474 of the Civil Code of the Russian Federation, a legal entity has the exclusive right to use its company name.
By virtue of clause 3 of Art. 1474 of the Civil Code of the Russian Federation, it is not permitted for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it, if these legal entities carry out similar activities and the company name of the second legal entity was included in the unified state register of legal entities earlier than the company name name of the first legal entity.
In accordance with clause 1 of the Regulations on the Federal Tax Service, approved by Decree of the Government of the Russian Federation of September 30, 2004 N 506, the Federal Tax Service is responsible for the registration of legal entities.
The state registration authorities of legal entities do not have the right, on their own initiative, to refuse state registration of a legal entity whose company name is identical to the company names of those included in the Register of legal entities. The law does not provide for a procedure for checking the name of a commercial organization for uniqueness by the registration authority. Accordingly, the emergence of organizations with the same brand names is not stopped.
Cases when refusal of state registration of a legal entity is allowed are listed in paragraph 1 of Art. 23 Federal Law dated 08.08.2001 N 129-FZ "On state registration of legal entities and individual entrepreneurs".
By virtue of paragraphs. "g" clause 1 art. 23 of the Federal Law of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, refusal of state registration is allowed in the case of inconsistencies the name of the legal entity as required by federal law. Non-compliance established requirements to the company name during state registration of a legal entity is not named in this list.
If a legal entity violates the requirements of paragraph 3 of Art. 1474 of the Civil Code of the Russian Federation, the right to file a claim belongs to the legal entity - the copyright holder, and not to the tax authority. In this case, the arbitration court is subject to protection of the exclusive right to the corporate name of a legal entity that was included in the Unified State Register of Legal Entities earlier than another, regardless of which of the legal entities was the first to begin the relevant activities (clause 59 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 5, Plenum of the Supreme Arbitration Court of the Russian Federation No. 29 dated March 26, 2009 “On some issues that arose in connection with the entry into force of part four of the Civil Code Russian Federation").
Limited liability companies are common in Russia, since this form of management entrepreneurial activity considered the most convenient for founders. It is distinguished by its small size authorized capital– it is 10,000 rubles (for all companies, excluding those engaged in financial transactions) and what the individual participant bears financial liability within its share. But when opening an LLC, the applicant may encounter some difficulties. One of them is that the name of the organization must comply with the requirements of Russian legislation. You can find out about the standards by reading the article.
Requirements for an LLC name
The standards that must be adhered to are specified in the Civil Code of the Russian Federation and the Federal Law “On Limited Liability Companies” No. 14-FZ, adopted on February 8, 1998.
In these regulations it is stipulated that an LLC can have both a full and an abbreviated name in the state and foreign languages, while combining letters of different alphabets is prohibited. The law also allows companies to have 6 names at once. Moreover, each of them must be indicated in the LLC Charter. Subsequently, all of them will be entered into the unified state register of legal entities. After this, they can be used to promote your business (for example, in advertising).
The full name means the name of the enterprise itself along with the designation of the form of business activity without abbreviations, that is, “limited liability company.”
The abbreviated name is not required to be used, but the law allows the organization to enter it along with the full designation. It may be an abbreviation.
Besides, government bodies make it possible to use various mathematical notations or Roman numerals.
What names cannot be given?
To ensure that the Federal Tax Service does not refuse the applicant to register an LLC, you need to know which words are prohibited from being used in the name of the company. These include:
- The word “Russia” and any abbreviations derived from it, for example, “ros”. This group includes the words “Moscow”, “federal”;
- Full or abbreviated names state entities(Example: Altai region), government bodies (Example: Ministry of Health), public associations;
- Names of organizations operating at the international level;
- Names of the subjects of the country, that is, cities, regions, etc.
But there are situations in which the words from the first paragraph are allowed to be used. This can be done in the following cases:
- A commercial organization has branches located in more than half of the constituent entities of the Federation, that is, there must be at least 43 branches in different regions of Russia;
- The company is a large taxpayer. A company becomes such if the amount of mandatory payments to the state is at least 1 billion rubles per year;
- LLC is the main manufacturer of the products it produces (at least 35% of the entire market for these goods);
- One of the investors is the Russian Federation (the share in the authorized capital must be at least 25%).
If one of these points is met, the company must submit a package of documents to the Ministry of Justice. These include:
- A statement indicating that the company wants to have a name that includes the word “Russia”;
- Protocol signed by general meeting LLC participants;
- Information confirming that the enterprise has the right to include such names in its corporate name.
After submitting your application civil service reviews the application within 1 month.
Is it possible to register an LLC with the same name?
The third paragraph of Article 1474 of the Civil Code of the Russian Federation “Exclusive right to a company name” states that enterprises supplying identical products to the market are prohibited from having the same name.
When considering an application, a thorough check is made to ensure the uniqueness of the company name. The process takes place on the official website of the Federal Tax Service.
If the company does not pass the inspection, then it is denied opening. In addition, it must pay losses to the company that received this name earlier.
Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 5/29 March 26, 2009
“On some issues that arose in connection with the entry into force of part four
Civil Code of the Russian Federation"
Right to a company name
58.1. Taking into account the provisions of paragraph 3 of Article 1473 of the Civil Code of the Russian Federation, each legal entity operating in the organizational and legal form of a commercial organization must have one full company name and may have one abbreviated company name. Moreover, according to paragraph 1 of Article 1473, paragraph 2 of Article 1475 of the Code, a company name is subject to protection from the date of state registration of a legal entity. The Civil Code of the Russian Federation does not require any special registration of a company name specified in the constituent documents of a legal entity.
58.2. By virtue of paragraph 4 of Article 54, paragraph 1 of Article 1473 of the Civil Code of the Russian Federation, the right to a company name arises only from a legal entity that is a commercial organization.
The names of non-profit organizations (Article 4 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations”) are not a means of individualizing legal entities in the sense of the provisions of Part Four of the Civil Code of the Russian Federation; they are not subject to the legal protection established by paragraph 1 of Chapter 76 of the Code.
In view of this, the rules provided for in Article 1473 of the Civil Code of the Russian Federation, including the prohibitions contained in paragraph 4 of this article, on non-profit organizations do not apply.
The names of associations of legal entities that are not legal entities do not qualify as company names in the sense of the provisions of the Civil Code of the Russian Federation.
58.3. Words derived from the official name “Russian Federation” or “Russia”, in the sense of paragraph eight of paragraph 4 of Article 1473 of the Civil Code of the Russian Federation, should be understood as including the word “Russian” (and derivatives from it) both in Russian and in foreign languages in Russian transcription, but not the word “Russian” (and its derivatives).
58.4. In relation to subparagraph 1 of paragraph 4 of Article 1473 of the Civil Code of the Russian Federation, the corporate name of a legal entity cannot also include full or abbreviated names of interstate unions (for example: Commonwealth of Independent States, CIS).
58.5. Requirements for brand names credit institutions are defined both by Article 1473 of the Civil Code of the Russian Federation (the prohibitions established by paragraph 4 of this article also apply to them) and Article 7 of the Federal Law “On Banks and banking", introducing additional requirements for the corporate names of these organizations.
58.6. Disputes regarding brand names fall under the jurisdiction of arbitration courts.
59. According to paragraph 3 of Article 1474 of the Civil Code of the Russian Federation, it is not permitted for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it, if these legal entities carry out similar activities and the company name of the second legal entity was included in the unified state register legal entities (hereinafter referred to as the Register) earlier than the corporate name of the first legal entity.
When applying this rule, courts must take into account: the exclusive right to the trade name of a legal entity that was included in the Register earlier than another one is subject to protection, regardless of which of the legal entities began the corresponding activity earlier.
60. Courts should keep in mind that, by virtue of paragraph 4 of Article 1474 of the Civil Code of the Russian Federation, the requirement to stop using a company name that is identical to the company name of the copyright holder or confusingly similar to it in relation to types of activities similar to the types of activities carried out by the copyright holder, and to compensate Damages caused to the copyright holder can only be claimed by the copyright holder. The body carrying out state registration of legal entities, on the basis of paragraph 5 of Article 1473 of the Code, is given the right to bring to court only a claim for compulsion to change the company name and only if the company name of the legal entity does not meet the requirements of paragraphs 3 or 4 of this article. The Code does not provide other persons with the right to demand from a legal entity to stop violating the provisions of paragraph 1 of Chapter 76 of the Civil Code of the Russian Federation.
61. When applying Article 1475 of the Civil Code of the Russian Federation, courts should take into account that it does not exclude the protection in the Russian Federation of the right to the trade name of foreign legal entities (Article 8 of the Paris Convention for the Protection of Industrial Property).
Trademark rights and service mark rights
62. By virtue of paragraph 1 of Article 1484 of the Civil Code of the Russian Federation, the exclusive right to use trademark belongs to the person in whose name the corresponding trademark is registered (right holder).
Consequently, the person in whose name the trademark is registered cannot be denied its protection (even if evidence of the illegality of registration of the trademark is presented to the court) until the granting of legal protection to such a trademark is declared invalid in the manner provided for in Article 1512 of the Civil Code of the Russian Federation , or termination of legal protection of the trademark in the manner established by Article 1514 of the Code.
At the same time, the court has the right to refuse a person to protect his right to a trademark on the basis of Article 10 of the Civil Code of the Russian Federation, if, according to the case materials, based on specific factual circumstances, actions for state registration of the corresponding trademark can be qualified as an abuse of right.
Hello, I decided to open an LLC. If I use a company name that is already used by another company, will I be held responsible for this?
- Question: No. 1714 dated: 2015-03-26.
This issue is regulated by civil and antimonopoly legislation.
1) In accordance with paragraph 1 of Art. 1473 of the Civil Code of the Russian Federation, a legal entity that is a commercial organization acts in civil circulation under its corporate name, which is determined in its constituent documents and is included in the unified state register of legal entities upon state registration of the legal entity.
So, the company name is fixed in the constituent documents of the company and is included in the unified state register of legal entities.
According to Art. 1474 of the Civil Code of the Russian Federation, a legal entity has the exclusive right to use its company name as a means of individualization in any way that does not contradict the law (exclusive right to a company name), including by indicating it on signs, forms, invoices and other documentation, in announcements and advertising , on goods or their packaging, on the Internet.
Abbreviated company names, as well as company names in the languages of the peoples of the Russian Federation and foreign languages, are protected by the exclusive right to a company name, subject to their inclusion in the unified state register of legal entities.
It is not permitted for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it if these legal entities carry out similar activities, and the company name of the second legal entity was included in the unified state register of legal entities earlier than the company name of the first legal entity.
A legal entity that has violated the above rules, at the request of the copyright holder, is obliged, at its own discretion, to stop using a company name that is identical to the company name of the copyright holder or confusingly similar to it in relation to types of activities similar to the types of activities carried out by the copyright holder, or to change its company name, and is also obliged to compensate the copyright holder for damages caused.
Thus, the Civil Code of the Russian Federation prohibits the use of a company name that was previously registered by another organization. Violation of this norm entails civil liability, which is expressed in a further ban on the use of this name, as well as compensation for damages.
This position is confirmed judicial practice. For example, the Limited Liability Company Revdinsky Hardware and Metallurgical Union (hereinafter referred to as the plaintiff) filed a claim with the Arbitration Court of the Sverdlovsk Region against Revdinsky Hardware and Metallurgical Union LLC (hereinafter referred to as the defendant) to prohibit the defendant from using the company name. The Arbitration Court of the Sverdlovsk Region, in its decision dated June 1, 2010 in case No. A60-11617/2010-C7, satisfied this requirement, prohibiting the defendant from using a similar company name, as well as collecting payment costs from him in favor of the plaintiff legal services and state duty. The Seventeenth Arbitration Court of Appeal dated August 17, 2010 in its Resolution No. 17AP-7422/2010-GK this decision left unchanged.
2) In accordance with Part 2 of Art. 14 of the Federal Law of July 26, 2006 “On the Protection of Competition” No. 135-FZ (hereinafter referred to as the Federal Law “On the Protection of Competition”), unfair competition associated with the acquisition and use of the exclusive right to means of individualization of a legal entity, means of individualization of products, works is not allowed or services.
According to paragraph 9 of Art. 4 of the Federal Law “On Protection of Competition”, unfair competition is any actions of business entities (groups of persons) that are aimed at obtaining advantages in carrying out business activities, contradict the legislation of the Russian Federation, business customs, the requirements of integrity, reasonableness and fairness and have caused or may cause losses to other business entities - competitors have either caused or may harm their business reputation.
Thus, the Federal Law “On Protection of Competition” prohibits the use in any way of the exclusive rights of a legal entity (including the right to a company name) if given use will violate the rights of competitors.
By virtue of paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration on the territory of the Russian Federation by indicating the name of the locality (municipal entity).
In accordance with clause 5.33 of GOST of the Russian Federation dated July 3, 2003 No. 535-st, economic activity means activities carried out in the course of production activities an individual entrepreneur or a legal entity, regardless of the form of ownership and whether it is commercial or non-commercial in nature.
From the analysis of the Federal Law of August 8, 2001 “On State Registration of Legal Entities and Individual Entrepreneurs” No. 129-FZ and the Resolution of the State Committee of the Russian Federation for Standardization and Metrology of November 6, 2001 No. 454-st, it follows that the types economic activity carried out by a legal entity are determined in accordance with All-Russian classifiers species economic activity OK 029-2001 (hereinafter - OKVED).
So, organizations are competitors if they are located within the same geographical boundaries and carry out the same types of activities, determined in accordance with OKVED.
According to Art. 8 of the “Convention for the Protection of Industrial Property” of March 20, 1883 (hereinafter referred to as the “Convention”), a trade name is protected in all countries without the requirement of filing an application or registration and regardless of whether it is part of a trademark.
In strength 1 tbsp. 10 of the Convention, in particular, all actions capable of causing confusion in any way with respect to the enterprise, products or industrial or trading activities competitor.
Consequently, the “Convention” prohibits the use of a company name that is similar to the company name of another legal entity if this use will cause confusion among third parties in any relationship with these organizations.
This position is confirmed by judicial practice. By virtue of clause 16 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 13, 2007 No. 122 “Review of the practice of considering arbitration courts cases related to the application of legislation on intellectual property" (hereinafter referred to as "Information Letter of the Supreme Arbitration Court of the Russian Federation No. 122"), the use of not only an identical, but also a similar company name by third parties is unlawful.
In accordance with paragraph 17 of the “Information Letter of the Supreme Arbitration Court of the Russian Federation No. 122”, the difference between organizational and legal form as part of a company name does not in itself indicate the absence of a violation of the right to a company name.
This position is confirmed by judicial practice. The Eighteenth Arbitration Court of Appeal in its Resolution No. 8AP-6348/2014 in case No. A47-15961/2012 indicated that the difference between the organizational and legal form of one organization (limited liability company) from the organizational and legal form of another organization (closed Joint-Stock Company) is not a basis that releases the company from liability.
So, based on the analysis of the norms of antimonopoly legislation, it follows that an organization will violate the exclusive right to the trade name of another legal entity in the presence of the following circumstances:
- This company name completely or partially coincides with the company name of another company to such an extent that it can mislead third parties;
- Organizations operate within one locality (municipal entity);
- Organizations carry out similar activities (coinciding with OKVED);
It should be noted that the presence of all of the above circumstances is recognized as a violation of antimonopoly legislation. At the same time, the difference in the organizational and legal form of legal entities is not a basis excluding prosecution.
3) This violation of antimonopoly legislation is an administrative offense and entails administrative liability.
In accordance with Part 1 of Art. 14. 33 Code of Administrative Offenses implementation unfair competition, - entails the imposition of an administrative fine on legal entities - from one hundred thousand to five hundred thousand rubles.
This position is confirmed by judicial practice.
The Sovetsky District Court of Novosibirsk, in its decision dated April 1, 2014 in case No. 12-53/14, upheld the decision of the deputy head of the Federal Antimonopoly Service for the Novosibirsk Region dated December 4, 2013 on the involvement of Petrovich E.A. to administrative liability under Part 1 of Art. 14.33 Code of Administrative Offenses of the Russian Federation. In support of its decision, the Sovetsky District Court of Novosibirsk indicated that the violation charged to her was expressed in the acquisition and use of the trade name LLC “1”, similar to the trade name of another legal entity LLC MC “2”, in relation to types of activities similar to the types of activities carried out by the latter in one territory.
The Eighteenth Arbitration Court of Appeal, in its Resolution No. 8AP-6348/2014 in case No. A47-15961/2012, held the Uralrentgen company administratively liable for violation by this company of Art. 14.33 Code of Administrative Offenses of the Russian Federation. In support of its decision, the court indicated that in the conditions of the use by the violator of the main element in his own name, which is confusingly similar to the main element of a previously registered means of individualization of a third party, and the implementation by these persons of homogeneous and similar types of economic activities within the same territorial entity, the actions of the applicant cannot be recognized as meeting the requirements of integrity, reasonableness and fairness, and contradict the provisions of Part 2 of Art. 14 of the Federal Law “On Protection of Competition”, since such actions were committed with the aim of obtaining an unreasonable advantage in carrying out business activities.
By virtue of Art. 1253 of the Civil Code of the Russian Federation, if a legal entity repeatedly or grossly violates the exclusive rights to the results of intellectual activity and to means of individualization, the court in accordance with paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, if such a legal entity is guilty of violating exclusive rights, it may decide to liquidate it at the request of the prosecutor.
Thus, if a legal entity repeatedly violates the rights of competitors to a company name, then it can be liquidated in court
To receive a more detailed consultation, we recommend that you contact the reception office of lawyer Sergei Sergeevich Ivlev at the address: Orenburg, st. Shevchenko 20B, office 414, tel.: 8-912-84-84-805.
Attention! The information provided in the article is current at the time of publication.
