Company Naming under German Law: Lessons from Recent Court Decisions

The choice of company is a decisive step for every company – both legally and economically. A recent decision of the Federal Court of Justice (decision of 11.3.2025 – II ZB 9/24) shows that creativity is not the only thing that counts when it comes to naming.

Principles for the formation of a company in the GmbH

A GmbH can opt for one of the following types of companies:

• Property company: The name refers to the object of the company.
• Partnership: The name contains a natural person.
• Mixed firm: Combination of material and personal components.
• Fantasy company: Even fictitious names without reference to the object of the company are permissible, provided they are distinctive.

When choosing a company, the general principles according to §§ 18, 30 HGB must be observed. This means that the company name must be suitable for identifying the company, have distinctive character and must not be misleading.

The problem of lack of distinctiveness is particularly common in the case of property companies. This is because pure generic or industry designations such as “Handwerker GmbH” or “Logistik GmbH” are not sufficient. Sequences of digits such as “23 GmbH” are also not distinctive. Therefore, an individualizing addition (e.g. by letter combination, location or fantasy name) should always be included.

In addition, it must be ensured that there is no other company at the company’s registered office with which the new company could be confused. For example, the registration of Pex Logistik GmbH at the registered office of the already registered Pax Logistics GmbH was considered inadmissible. The Berlin Court of Appeal (decision of 17.5.2024 – 22 W 10/24) confirmed the registration refusal of the register court on the grounds that the names were too similar, both visually and in terms of content. A different vowel is not enough. In addition, the court pointed out that even the consent of the other company did not change this.

Consequence of violations of these principles

If the aforementioned principles are not complied with and the company violates the legal requirements, the register court will refuse to register the company. This is particularly annoying if it delays the opening of business operations or if an expense has already been incurred in connection with the (new) company (e.g. logo, homepage, business stationery).

Current decision of the Federal Court of Justice

In the above-mentioned case, a stock corporation (although the decision also applies to a GmbH without further ado) had wanted to change its company name to “vertrieb.de AG” – based on an already registered domain. The register court refused to register. The Federal Court of Justice has now confirmed in the last instance, after dealing with the question of distinctiveness: The company component “distribution” is a generic term without a distinctive effect. The addition of the domain ending “.de” does not change this. The technical uniqueness of a domain at the DENIC registry is also irrelevant for the assessment under company law.

Practical tip

In order to avoid grounds for registration and the associated consequences (delay, additional costs), it is advisable to always subject a new company to a careful legal examination. Although the decision on the admissibility of a company is made by the register court, in cases of doubt it is advisable to submit a preliminary inquiry under company law to the responsible Chamber of Industry and Commerce. In addition, an assessment of trademark, name and competition law should be obtained, if necessary.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germany@transatlanticlaw.com

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