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9 Sep 2021 Company takeover? Don’t forget to make agreements on the trade name

Vorige week schreven we al dat het thema ‘pensioenen’ nog al eens vergeten wordt bij bedrijfsovername. Deze week besteden wij aandacht aan een ander onderwerp waar soms niet aan wordt gedacht bij overnames: de handelsnaam.

What is a trade name? This is the name under which the company activities are carried out. Usually, the trade name is the same as the official company name registered in the Trade Register of the Chamber of Commerce. However, a trade name can also exist through actual use. A company can also have several trade names. It is important to know that in trade name law, it is important that the trade name is actually used. Therefore, the registration of the trade name is not so decisive.

The importance of paying attention to the trade name in case of a takeover was illustrated by a provisional ruling of the Court of Amsterdam this summer. This judgment underlines the importance of making clear written agreements about what the takeover exactly entails. Unfortunately, this had not happened here. It concerned a sandwich business with various branches and later a franchise formula. Ultimately, a disagreement arose between the seller and the purchasing party (who had taken over one branch). The buyer argued that, legally speaking, the trade name had also been transferred while the selling party was of the opinion that there was only a right to use the trade name and logo; only the business activities had been transferred, not the trade name or logo.

In this case, the court found in favour of the buyer in summary proceedings. The court deemed it sufficiently plausible that the company had been transferred for €90,000. For that price, the buyer not only took over the lease, the inventory, the stock and the personnel but also the trade name. The selling party argued that it only concerned a franchise construction or licenses granted for the use of the trade name, but according to the court, this was not substantiated. The discussion about the use of the logo has not yet been settled; this will have to be addressed in proceedings on the merits. If you want to read all the facts (in Dutch), please consult here .

Met vragen over bedrijfsovernames, handelsnaamrecht of andere ondernemersaangelegenheden kunt u terecht bij SPEE advocaten & mediation.

SPEE advocaten & mediation Maastricht

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