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When you start up a business in your own name and later on sell it, you will — unless otherwise agreed — lose your right to use your own name again as a trademark within the same or similar line of business.
One example of this is a recent Supreme Court case, which explored the right of individuals to use their own names.
The Supreme Court concluded that taking into account that the own-name-defence is an exception to the general right granted the proprietor of a trademark to prohibit any person not having his consent from using any sign in the course of trade if the sign is similar or identical to the trademark.
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Comment The reasoning behind this decision is clear and has been confirmed by two instances. Due to various circumstances, Utzon filed for bankruptcy in In its decision, the Supreme Court stated that the term 'good marketing practice' entails that the commercial use of an individual's own name must be done in a way that is not unfair, improper or damaging to the rights holder.
Following the decision, Utzon changed her name to Dicte Utzon and has declared that she is considering taking the case to the European Court of Human Rights, given that she is now barred from using her birth name in her work as a designer.
Further, the court stated that where a person has used his or her own name as a trademark and assigned the trademark to a third party, the principle of good marketing practice entails that he or she is then prevented from using the name as a trademark for goods or services similar to those for which the trademark was registered.
This means that Benedikte Utzon can no longer use her name as follows: Legal background Facts Decisions Comment Although legislation treats personal names and trademarks equally, the criteria for what constitutes good marketing practice is often more generous for personal names.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide.
So all entrepreneurs out there: Danish case law regarding personal names has evolved over the past 10 years. If the person continues such use, he or she may be infringing the trademark rights of others.
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Sinceit has sold clothing under the Benedikte Utzon brand. Legal background Trademark owners are entitled to prevent others from using the same or a similar mark for identical or similar goods and services.
However, recently we have received two rulings going in the other direction.
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