Registering the company does not give you the name
The registry said the name was available, so the name is yours. That inference is wrong, and it is the most expensive mistake of the whole incorporation process.
Incorporating a company means asking a companies registry to reserve a name. They check it against the names of other companies, they tell you it is available, and you reasonably conclude the name is yours. What you have is the name your company signs contracts and files accounts under. Not the name you sell under.
Two registers that do not talk to each other
A company name identifies a legal person, and the companies registry keeps it. A trade mark identifies goods and services in the market, and an industrial property office keeps it — the national office, or the EUIPO for protection across the twenty-seven member states. Different requirements, different effects. One saying yes says nothing about the other.
Spanish law is unusually explicit about the gap, which makes it a good illustration of a problem that exists across the Union. The fourteenth additional provision of the Spanish Trade Mark Act (Ley 17/2001) obliges registry bodies to refuse a company name that coincides with, or could be confused with, a trade mark or trade name that is well known or has a reputation, unless its proprietor authorises it. Read that qualifier again: well known or with a reputation. The overwhelming majority of registered marks are neither, and against those the companies registry will say nothing at all.
There is also a practical limit the Spanish office itself has pointed out: when the name is reserved, nobody yet knows what the company will do. And infringement turns on the goods or services being identical or similar. Without knowing the business, that comparison cannot be made properly.
What can happen afterwards
The proprietor of an earlier mark can require you to stop using the sign in the market. That does not necessarily mean dissolving the company — the name can stay in the deed — but it can mean changing the sign over the door, the domain, the stationery, the social accounts and everything the public sees. Which is, in practice, changing your name.
The order that avoids it
Check the trade mark registers first, in the classes of your actual activity, and only then reserve the company name. Doing it the other way round is buying the flat and then looking up the charges against it.
Sources
- OEPM · Marcas y denominaciones sociales (seminario sobre la Ley 17/2001)
- OEPM · Tramitación de la solicitud de registro