What is a trade mark?

A mark is a registered right in a name or logo

A mark is the registration of a name, logo or other sign with an official trademark office, whereby that sign is linked to specific products or services. This can be done with the BOIP for the Benelux, or with the EUIPO for the entire European Union. That registration grants an exclusive right: only the mark holder may use the sign for the products or services for which it is registered, and others can be prevented from doing so.

A business name is something different, and that distinction is precisely why "I've been using that name already" is not the same as "I have a right to it". A business name is the name under which an undertaking presents itself to the public and arises simply through use, without prior examination and without that name being centrally recorded as a mark. This means that a business name may identify who the business is, but it does not grant an exclusive right to that name as a mark for products or services. Another person can still have that same name or a very similar name registered as a mark with the BOIP or the EUIPO — and that mark holder can subsequently ask the original user to cease use. If you only operate under a business name, you are left without registration in the mark register and without recourse when it comes to that exclusivity.

Where this is based on: the registers of BOIP and EUIPO

This explanation follows from the way the BOIP and the EUIPO describe the mark system themselves: a mark exists as a registered right in their register, filed and examined through their official procedure, and that is a different process from the registration of a business name. For the precise workings of an application and the structure of the register, the BOIP register is the source for the Benelux and the EUIPO website is the source for the European Union.