COMPANY FOUNDING AND MANAGEMENT
Basic rules of company law
Do you want to give your company a name? Then you need to ensure that the company name is sufficiently distinctive. You should also review whether there is any risk of it being confused with other companies already registered in the Commercial Register of Hamburg or in another registration region. Moreover, your selected company name should not be misleading.
Your company (e.g. GmbH, AG or KG) must have an individualising component added to it. You can choose between a combination of letters, a made-up word or a shareholder name. Mixed company names from these areas are also permitted.
Trade professionals who are not entered in the commercial register (non-traders) must always present externally with their first name and last names. Made-up designations, combinations of letters, and industry designations may be used alongside the name.
Legal development
Since the commercial reform came into effect (1 July, 1998) all companies registered in the commercial register have the option of using a factual name, a made-up name or a personal name for their firm. As is already the case in accordance with previously applicable company law, the company name must be distinctive and must not be obviously misleading. In addition, the corresponding legal form addition must always be stated in the company name.
Distinctiveness
A company name that only consists of a factual name and regional designations does not generally have sufficient distinctiveness. For example, this would be the case with Hamburg Computer Retail GmbH. Therefore, it is always necessary to include an individualised addition. i.e. a designation that individually identifies a company and distinguishes it from others. For example, a combination of letters that is at least three digits long, a shareholder name or a made-up designation (e.g. ABC Computer Retail Hamburg GmbH, Smith Computer Retail GmbH or TOPTEC Computer Retail GmbH) are suitable for this.
Risk of being confused
Even if the company name you have selected complies with the principles of company law, it may nevertheless be the case that the company name cannot be entered in the commercial register. This could be the case for example if a company name already exists in the registration district which is the same or could be confused with it.
If a company name already exists in a different registration district which is the same or could be confused with it, this will not prevent entry in the commercial register. However, it should be considered that a company which is registered at another location may assert claims under competition law and successfully file a law suit requiring you to refrain from using the name. This can happen if a different company that is operational in the same or a similar industry has already operated under the made-up name you are using, before you were doing so.
Tip: To keep the risk of a warning as low as possible, it is recommended that before registration in the commercial register or using the designation, you review whether other companies are already operating under your preferred name. We will be happy to help you with this review.
Misrepresentation
The company name must not have any additions that constitute obvious misrepresentation. For example, the name ABC Trading GmbH is not permitted if the company only provides advice. The name XYZ Consultancy Munich KG is misleading if the company is registered in Hamburg and is to be entered in the commercial register here. Use of the legal form addition.
The legal form addition previously only stipulated for companies with limited liability (GmbH) and public limited companies (AG) is now also required for the designations limited partnership (KG), general partnership (OHG) and registered sole trader (eingetragener Kaufmann). For partnerships (KG and OHG), the legal form addition can be Kommanditgesellschaft (limited partnership) or KG, and respectively Offene Handelsgesellschaft (general partnership) or OHG. These are already in frequent use, while to date there has been no legal form addition in the commercial register for registered sole trader. For this case, previously only use of the first and last names of the owner has been stipulated.
The sole trader must now also use a legal form addition, in the form of the designation “eingetragener Kaufmann” (registered sole trader) or a generally understandable abbreviation of this designation such as “e.K.” The legal form additions stipulated for companies with limited liability and public limited companies may also be abbreviated (GmbH and AG).
Transition deadlines
The companies without a legal form addition that were registered before the commercial law reform came into effect on 31 March, 2003, may continue to operate to the extent that their operation is permitted in accordance with the previous specifications. If the stipulated legal form addition (e.g. e.K or OHG) was only added after the reform came into effect, this change does not require registration for entry into the commercial register.
Factual name, personal name, made-up name
The factual company name is derived from the purpose of the company and therefore contains industry designations that describe the company’s activity (e.g. ABC Software Development KG or TOPTEC Computer Sales AG). The personal company name generally contains the owner’s name or the name of one or several shareholders. This could be for example John Smith KG or Williams GmbH.
Made-up company names consist only of made-up designations (e.g. TOPTEC AG). Often these made-up names are brand names.
Mixed names consisting of a personal name, factual name and made-up name are permitted.
Rules for non-traders
The above rules under company law apply for companies that are entered in the commercial register. Trade professionals who are not entered in the commercial register must always present externally with their first name and last names in business operations. In the case of a company constituted under civil law with the designation BGB-Gesellschaft, the first and last names of all shareholders must be named. Alongside the name, made-up designations, combinations of letters, and industry designations and what are referred to as establishment designations of the premises (e.g. “To the golden stag”) can be operated under. However, additions of this type are not noted in your business registration certificate; this is only issued to the first and last names of the trade professional. Before you use additions such as combinations of letters or made-up designations, you should check that the corresponding designations are not already registered as a name or brand, or used by other companies as a logo or establishment designation.
Tip: To avoid later objections and costly amendments, and also to speed up the registration process, you should coordinate in advance with the chamber of commerce regarding the planned company name!
Important addresses
District Court of Hamburg
Department 66
Caffamacherreihe 20
20348 Hamburg
Tel.: 04042843-3440 or -4313
Fax: 040 42 843-4718 19
Department 66
Caffamacherreihe 20
20348 Hamburg
Tel.: 04042843-3440 or -4313
Fax: 040 42 843-4718 19
IPC Innovation and Patent Centre
Adolphsplatz 1
20457 Hamburg
Tel.: 040 36 138-376
Fax: 040 36 138-401
Adolphsplatz 1
20457 Hamburg
Tel.: 040 36 138-376
Fax: 040 36 138-401