Can I Use an Existing Brand Name? What Really Counts

"Am I actually allowed to use this name?" Almost every founder asks this question right before ordering a logo, a domain, and business cards. The short answer: it depends on the likelihood of confusion, not on whether the name is identical alone. A registered trademark gives its owner an exclusive right under Section 14 of the German Trademark Act (MarkenG, 2025). Third parties may not use identical or similar signs for identical or similar goods and services. But the same name in a completely different industry can be permissible. In this guide I will show you how professionals weigh the risk, where the permitted exceptions lie, and when you are better off asking a lawyer. (General orientation, not legal advice.)

Key Takeaways

• What counts is the likelihood of confusion, not an identical name alone (EUIPO Guidelines, 2025).
• A registered trademark gives its owner an exclusive right (Section 14 MarkenG, 2025).
• The same name in an entirely different industry can be allowed, but it is always a case-by-case question.
• Your own name and descriptive terms are usable under conditions (Section 23 MarkenG, 2025).
• Stay well clear of well-known marks; their protection reaches further.

Before you settle on a name, it pays to look at how this works in practice. You can check your trademark at any time and work through this guide in parallel.

What does the exclusive right of a trademark mean?

A registered trademark gives its owner an exclusive right of use. Under Section 14 of the German Trademark Act (MarkenG, 2025), third parties may not use an identical or similar sign for identical or similar goods and services. This is the core of trademark protection and the reason the naming question becomes tricky in the first place.

The word "similar" is key. Protection does not stop at the exact same name. An altered sign can also be an infringement if it comes too close to the protected name and touches the same or a related industry. This is exactly where many founders misjudge the situation.

That said, protection is not unlimited. It applies, in principle, to the goods and services the trademark was registered for, that is, to specific Nice classes (the international classification system for goods and services). A trademark is not a monopoly on a word in every conceivable context.

A registered trademark gives its owner an exclusive right under Section 14 of the German Trademark Act (MarkenG, 2025). Third parties may not use identical or similar signs for identical or similar goods and services. Protection therefore covers not only the exact same name, but also confusingly similar signs in related industries.

Why does the likelihood of confusion decide, and not the name?

Because an identical name alone does not yet mean a conflict, and a similar name is not automatically free. According to the EUIPO Guidelines (Article 8(1)(b), 2025), the likelihood of confusion arises from the combination of two factors: the similarity of the signs and the similarity of the goods or services.

These two factors are interdependent. If the industries are very close, even a lower degree of name similarity is enough to create a conflict. If the signs are almost identical, a more distant industry overlap can be enough too. Both levers together produce the risk.

Which three types of sign similarity count?

When assessing sign similarity, examiners look at three levels. You should test your desired name against existing hits on all three:

• Phonetic: How similar do the names sound when spoken? "Konova" and "Conowa" are very close here.
• Visual: How similar do the words look when written? Length, letter sequence, and overall word shape all play a part.
• Conceptual: Do the names mean the same or something similar? "Sonne" and "Sun" are conceptually related.

When can the same name in a different industry be allowed?

When there is no likelihood of confusion, for example because the goods and services fall in entirely different classes. A café and a software product can in theory carry the same name without their target audiences overlapping. According to the EUIPO Guidelines (2025), however, this is always a case-by-case assessment, never automatic. Never rely on the gut feeling of "different industry, so it must be free."

The likelihood of confusion arises, under the EUIPO Guidelines (Article 8(1)(b), 2025), from the interplay of sign similarity and similarity of the goods or services, with the two being interdependent. The same name in an entirely different industry can therefore be permissible, but it is always a case-by-case question and never a reliable free pass.

Which exceptions does trademark law allow?

There are narrowly defined exceptions, but no free pass. Section 23 of the German Trademark Act (MarkenG, 2025) allows two things under certain conditions: the use of your own name and the use of purely descriptive terms. Describing a feature of your product does not necessarily mean you are using someone else's trademark.

These exceptions have clear limits. The use must accord with honest practices in industry and trade. So you may not deploy your surname in a way that deliberately creates confusion with a well-known mark. Descriptive means genuinely descriptive, not highlighted in a trademark-like way.

Do not count on one of these exceptions to save you. In practice the transitions are fluid, and whether something is still "descriptive" or already "trademark use" ends up in court when there is a dispute. The exception is a narrow path, not a wide road.

Section 23 of the German Trademark Act (MarkenG, 2025) allows, under certain conditions, the use of your own name and purely descriptive terms, even where they touch on someone else's trademark. This is not a free pass, though: the use must accord with honest practices and must not deliberately promote confusion with the protected mark.

Why are well-known marks a special case?

Because well-known marks enjoy broader protection that reaches beyond their own classes. While a normal trademark is, in principle, protected only in its Nice classes, a well-known mark can claim protection in other industries too (MarkenG, 2025). The "different industry" argument does not work here.

The reasoning behind it: well-known marks have a reputation that can be exploited or damaged. Anyone who uses the name of a well-known mark for an unrelated product profits from someone else's reputation or dilutes it. Owners want to prevent both, and they have the means to do so.

For you, this means in practice: stay away from well-known marks, even if your industry seems far removed. The risk of a cease-and-desist letter is high, and the effort of defending yourself is rarely worth the name. There are plenty of free, strong alternatives.

Well-known marks enjoy, under the German Trademark Act (MarkenG, 2025), broader protection that reaches beyond their registered Nice classes. Anyone who exploits or harms their reputation risks trademark infringement even in a completely different industry. The usual argument of "different class, so it is allowed" does not hold for well-known marks.

How do you check a name before you use it?

With a similarity search, not just an identity search. A pure identity search finds only exactly matching names and overlooks phonetically or visually similar signs, which carry the real risk. So before you commit to any name, a structured preliminary search is essential.

Here is how to proceed in practice:

1. Collect the name and clarify your industry. Note which Nice classes you will be active in.
2. Similarity search instead of identity search. Look for phonetically, visually, and conceptually similar marks, not just the exact name.
3. Assess the hits. For each hit, evaluate sign similarity and industry proximity together.
4. Flag borderline cases. Where both similarity and industry proximity are high, it gets critical.
5. Ask a lawyer in genuine borderline cases. The final legal assessment is a job for a specialist trademark lawyer.

A tool does not replace this assessment, but it gives you the foundation. Anyone who skips the step of trademark research before filing risks expensive surprises later. A structured EUIPO trademark search shows similar marks along with their classes before you put money into a logo and a domain.

A pure identity search finds only exactly matching names and overlooks phonetically or visually similar signs, where the real conflict risk lies. Before you use a name, a similarity search is therefore essential, one in which you evaluate each hit by sign similarity and industry proximity. In borderline cases, a lawyer decides.

Conclusion: research first, then commit

Whether you can use an existing brand name can rarely be answered with a quick yes or no. What counts is the likelihood of confusion, that is, the interplay of sign similarity and industry proximity (EUIPO Guidelines, 2025). An identical name in a foreign class can be allowed, while a merely similar name in the same industry can be forbidden.

The practical takeaway is simple. Before you commit to a name, always run a similarity search and assess the hits soberly. You stay clear of well-known marks, and in genuine borderline cases you get legal advice. This guide is general orientation and not legal advice.

The best next step: before you order a domain and logo, check your trademark and start out on the safe side.