By Muhamed L. Ceesay, Young Professional – Legal,
ARIPO
A trade name is the official name of a business or
company, serving as its legal identifier. Whether registered or not, trade names
are protected by law against unauthorised use, particularly when another party creates an identical
or confusingly similar name.
The recent case of State v. Ebrima Touray
[HC/074/18/CR/011/A0] concluded on 10th January 2025 at the High
Court of The Gambia found the accused person, Ebrima Touray, guilty of trade
name infringement for unlawfully using a trade name confusingly similar to that
of the complainant. Mr. Touray had imported wheelbarrows bearing the
inscription “BATHNAT”, a name phonetically and visually similar to “BATIMAT”-
the complainant’s registered trade name. As a result, he was consequently fined
D250,000 (USD 3,521) or, in default, sentenced to three years imprisonment.
Key Takeaways from the Case:
1.
Public Interest In Trade Name Protection
Trade Name infringement
is not only a private dispute between businesses—it also affects the public by
creating confusion in the marketplace. This case reaffirms the State’s
authority to prosecute such violations in the public interest. As a
legal principle, the power to initiate criminal proceedings lies exclusively
with the Director of Public Prosecutions, subject to approval
from the Attorney General.
This happens when a person or corporation illegally uses a trade name that misleads the public. The law is there to protect us individually and as a whole. So, even though the crime was between an individual and an enterprise, the State can still institute legal action for such a crime due to public interest.
2. Proving Trade Name Infringement
For a successful trade name infringement claim, the following elements
must be established:
1.
Lack of consent from the trade name owner.
2.
Confusing similarity between the infringing name and the protected trade name.
3.
Public deception, where the unauthorized use misleads consumers.
This means that a trade name happens when there is usage of a name that is confusingly similar to an existing trade name, and there was no consent to use the trade name leading to the illegal use of the trade name which misleads the public.
3. Trade Name Infringement as Unfair Competition
The unauthorized use of
a trade name constitutes unfair competition, a dishonest
practice that disrupts fair trade and violates legal protections. Businesses
that engage in such conduct can face legal consequences,
including fines and imprisonment.
It is considered unfair competition when a person or an enterprise uses names similar to other existing trade names, it is considered unfair competition. Using others' trade names constitutes dishonest practice in commercial space, which is illegal and punishable by law.
Final Thoughts
Businesses and traders must respect intellectual
property rights and avoid tactical violations that exploit the
goodwill of established trade names for profit. Ethical competition fosters
a healthy market, protects consumers from deception, and ensures fair business
practices.
In conclusion, traders and businesses must refrain
from using names similar to established trade names to increase their customer
base and maximize sales. We must all respect each other's business names. Most
importantly, we must compete fairly to meet the public's needs through quality
goods and services.